An appellate court recently ruled that a cooperative tenant’s defamation lawsuit should have been dismissed because the alleged defamatory statements were either non-actionable statements of opinion or were protected by privilege. Galanova v. Safir, 2016 N.Y. App. Div. LEXIS 2496, 2016 N.Y. Slip Op. 2617 (2d Dep’t Apr. 6, 2016).

The plaintiff is a tenant-shareholder of the Cooperative as well as a member of its Board of Directors. She brought suit against the other members of the Board alleging that the defendants had defamed her in a series of communications. The first allegedly defamatory communications were two e-mails sent to board members and others stating that plaintiff was in arrears on her maintenance and/or owed a debt to the Cooperative, and which also discussed her performance as a Board member.  In addition, plaintiff complained that she had been included in a list of “Shareholders in Arrears” that was posted in the building lobby, which listed her name, apartment number, and the alleged amount of arrears.  Finally, plaintiff alleged that she was further defamed when the court papers in a non-payment proceeding commenced against her in landlord-tenant court were posted on the door of her apartment.

A lower court held that plaintiff’s claims raised issues of fact requiring a trial, but an appellate court reversed this decision and granted summary judgment to defendants, dismissing all of plaintiff’s claims. With respect to the e-mails, the court categorized these as statements of opinion or “subjective characterizations” of plaintiff’s behavior, which therefore could not serve as a basis for liability.  The contents of the “Shareholders in Arrears” flyer, the court held, were protected by a doctrine known as the “qualified common interest privilege.”  Plaintiff failed to show that the posting of the flyer was motivated solely by malice against her, as would be required to overcome this privilege.  Finally, the court found that the posting of the legal papers on plaintiff’s apartment door was done as part of the process of effecting service of the legal papers as required by law, and was thus protected by an absolute privilege as pertinent to an ongoing judicial action.