Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on October 7, 2026

2025-02617, (Index No. 614920/22)

Colleen D. Duffy, J.P.

Linda Christopher

Carl J. Landicino

Susan Quirk, JJ.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the defendant appeals from an order of the Supreme Court, Nassau County (Felice J. Muraca, J.), dated January 17, 2025. The order, insofar as appealed from, denied those branches of the defendant's motion which were pursuant to CPLR 3211(a) to dismiss the amended complaint and pursuant to Civil Rights Law § 70-a(1)(a) for an award of attorneys' fees and costs.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendant's motion which were pursuant to CPLR 3211(a) to dismiss the amended complaint and pursuant to Civil Rights Law § 70-a(1)(a) for an award of attorneys' fees and costs are granted, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the amount of attorneys' fees and costs to be awarded to the defendant.

The plaintiff, an attorney, commenced this action against the defendant, inter alia, to recover damages for defamation arising out of a review posted by the defendant on a public Google profile for the plaintiff's law firm, which stated: "Don's Not Use Him!! He is what gives bad names to attorneys. . . . A Tinker of many types of law . . . A MASTER OF NONE!" The plaintiff thereafter filed an amended complaint, among other things, seeking damages of not less than $500,000 and to direct the removal of the review. The defendant subsequently moved, among other things, pursuant to CPLR 3211(a) to dismiss the amended complaint and pursuant to Civil Rights Law § 70-a(1)(a) for an award of attorneys' fees and costs, arguing that the action constituted a strategic lawsuit against public participation (hereinafter SLAPP suit). The plaintiff opposed. In an order dated January 17, 2025, the Supreme Court, inter alia, denied those branches of the motion.

Pursuant to amendments to the relevant statute that became effective in 2020, a SLAPP suit is defined as an action that, among other things, is based on "(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition" (Civil Rights Law § 76-a[1][a][1], [2]; see Moonbeam Gateway Mar., LLC v Tai Chan, 239 AD3d 965, 965). The statute provides that the term "public interest" "shall be construed broadly, and shall mean any subject other than a purely private matter" (Civil Rights Law § [*2]76-a[1][d]; see Moonbeam Gateway Mar., LLC v Tai Chan, 239 AD3d at 965).

On a defendant's motion pursuant to CPLR 3211(a)(7) and (g) to dismiss a complaint, once a defendant establishes that the action is an action involving public petition and participation, the plaintiff is obligated to demonstrate that the causes of action asserted therein have a "substantial basis in law" (id. § 3211[g]; see Moonbeam Gateway Mar., LLC v Tai Chan, 239 AD3d at 966). Further, attorneys' fees and costs shall be awarded to a defendant in a SLAPP suit "upon a demonstration . . . that the action . . . was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law" (Civil Rights Law § 70-a[1][a]).

Here, contrary to the Supreme Court's determination, the defendant satisfied her initial burden of establishing that this is an action involving public petition and participation, since it involves a claim based upon a communication in a public forum in connection with an issue of public interest (see id. § 76-a[1][a][1]). The defendant's review was posted on Google, an online platform that constitutes a public forum within the meaning of the statute (see Biagini Realty v Brightman, 244 AD3d 1173, 1176; VIP Pet Grooming Studio, Inc. v Sproule, 224 AD3d 78, 85). The subject matter of the review was the professional competence of a licensed attorney operating a law firm open to the public, which is not a purely private matter within the meaning of Civil Rights Law § 76-a(1)(d) (see Moonbeam Gateway Mar., LLC v Tai Chan, 239 AD3d at 966). Moreover, the defendant's review was not directed to a limited, private audience, but rather, was posted on a publicly accessible Google business profile visible to any member of the public searching for the plaintiff's law firm (see Biagini Realty v Brightman, 244 AD3d at 1176).

Since the defendant established that this action constitutes an action involving public petition and participation, the burden shifted to the plaintiff to demonstrate that the causes of action had a substantial basis in law (see CPLR 3211[g]; Moonbeam Gateway Mar., LLC v Tai Chan, 239 AD3d at 966).

The elements of a cause of action alleging defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se (see Moonbeam Gateway Mar., LLC v Tai Chan, 239 AD3d at 966-967). "Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action" (Gross v New York Times Co., 82 NY2d 146, 152-153 [internal quotation marks omitted]; see Moonbeam Gateway Mar., LLC v Tai Chan, 239 AD3d at 966-967). Thus, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be (see Kasavana v Vela, 172 AD3d 1042, 1045). A pure opinion may take one of two forms (see id.). "It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts" (Davis v Boeheim, 24 NY3d 262, 269 [alteration and internal quotation marks omitted]). A mixed opinion is actionable not because it conveys a false opinion, but rather, because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed (see Kasavana v Vela, 172 AD3d at 1045). In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact (see Stiloski v Wingate, 241 AD3d 958, 962).

Here, contrary to the plaintiff's contention, he failed to demonstrate that the cause of action alleging defamation had a substantial basis in law because the defendant's statements in her Google review of the plaintiff and his law firm unmistakably constitute nonactionable pure opinion (see Mann v Abel, 10 NY3d 271; Board of Mgrs. of Brightwater Towers Condominium v Vitebsky, 207 AD3d 694, 695). None of the phrases in the defendant's review have a precise meaning that is [*3]readily understood (see Mann v Abel, 10 NY3d at 276-277; North Shore Towers Apts. Inc. v Kozminsky, 219 AD3d 494, 495-496). The phrase, "tinker of many types of law, a master of none," is a variation of the familiar idiom, "jack of all trades, master of none," a figure of speech that is subjective and imprecise on its face, and the phrase, "what gives bad names to attorneys," is a vague expression of disapproval that does not communicate any specific factual assertion about the plaintiff to a reasonable reader (see North Shore Towers Apts. Inc. v Kozminsky, 219 AD3d at 495-496; Board of Mgrs. of Brightwater Towers Condominium v Vitebsky, 207 AD3d at 695).

Moreover, the context in which the review appeared signals to readers that the statement is likely to be opinion, not fact. The review was posted on Google, a consumer-facing review platform, and was written in a style associated with online hyperbole, including all capital letters, multiple exclamation points, ellipses, and typographical errors (see LeBlanc v Skinner, 103 AD3d 202, 213). Since the defendant's review does not accuse the plaintiff of any specific crime, wrongful act, or professional misconduct, and nothing in the review implies that the defendant possesses knowledge of undisclosed facts detrimental to the plaintiff (see Melius v Glacken, 94 AD3d 959, 960-961), the defendant's review does not constitute actionable mixed opinion (see Torati v Hodak, 147 AD3d 502, 503).

Accordingly, the Supreme Court should have granted those branches of the defendant's motion which were pursuant to CPLR 3211(a) to dismiss the amended complaint and pursuant to Civil Rights Law § 70-a(1)(a) for an award of attorneys' fees and costs.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

DUFFY, J.P., CHRISTOPHER, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court