Defamation Lawsuit Proceeds Against Trump: Part 2

In Zervos v. Trump, 2019 NY Slip Op 01851 (App. Div. 1st Dept. March 14, 2019), the court held, inter alia, that Summer Zervos’ defamation lawsuit against President Trump may proceed. After finding that the action was not barred on immunity/Supremacy Clause grounds, the court turned to the merits.

The court summarized New York defamation law – after finding that New York’s law of defamation indeed applied – as follows:

In determining whether a “reasonable” reader would consider that defendant’s statements that plaintiff lied about their encounters connotes fact or nonactionable opinion, there are three relevant factors to be considered holistically: (1) whether the statements have a “precise meaning” that is “readily understood”; (2) whether the statements can be proven true or false; and (3) whether either the context in which the statements were made or the “broader social context and surrounding circumstances [were] such as to signal … readers or listeners that what [was] being read or heard [was] likely to be opinion, not fact” (Davis v. Boeheim, 24 N.Y.3d at 270, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014] [internal quotation marks omitted] ).

Here, defendant’s denial of plaintiff’s allegations of sexual misconduct is susceptible of being proven true or false, since he either did or did not engage in the alleged behavior. To be sure, a denial, which is a statement of purported fact and not mere opinion, does not always provide a basis for a defamation claim, even though it implicitly claims that the alleging party is not telling the truth. However, a denial, coupled with the claim that the accuser is or will be proven a liar, impugns a person’s character as dishonest or immoral and typically crosses the line from nonactionable general denial to a specific factual statement about another that is reasonably susceptible of defamatory meaning[.]

Applying the law, the court held that while “[t]he use of the term liar could be perceived in some cases as no more than rhetorical hyperbole that is a nonactionable personal opinion … that is not the case here, where … defendant used the term in connection with his specific denial of factual allegations against him, which was necessarily a statement by him of his knowledge of the purported facts.”