In Cahn v. Chapler, 2026 NY Slip Op 50029(U) (Sup. Ct. NY Cty. Jan. 9, 2026), the court granted in part, and denied in part, defendants’ motion to dismiss plaintiff’s defamation claims.
The court explained and summarized the law as follows:
Defamation is defined as the making of a false statement of fact which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace. (Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 38 [1st Dept 2011].) Since falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being true, a defamation claim cannot be maintained unless it is premised on published assertion of fact rather than on assertions of opinion. (Id.; Davis v Boeheim, 24 NY3d 262, 268 [2014].) To determine whether a reasonable reader would consider a statement as factual in nature as opposed to a protected opinion, courts apply a three-part test, assessing: (1) whether the statement has a precise meaning which is readily understood, (2) whether it is capable of being proven true or false, and (3) whether the full social context of the statement signals to the reader the intent to convey actual facts. (Davis v. Boeheim, 24 NY3d 262, 269—70 [2014].)
In contrast to a factual statement, a “pure” opinion may take two forms: either (1) where the opinion is accompanied by a recitation of the facts upon which it is based, or (2) absent a factual recitation, an opinion that does not imply that it is based on undisclosed facts. (Id. at 269.) Regardless of how unreasonable or vituperative an opinion may be, one is never actionable. (See Steinhilber v. Alphonse, 68 NY2d 283, 289 [1986].) However, a “mixed” opinion is an opinion that implies it is based on facts not disclosed to the audience. (Stega v New [*4]York Downtown Hosp., 31 NY3d 661, 674 [2018].) Such statements are actionable not because they convey a false opinion, but because a reasonable reader may infer that the speaker knows undisclosed facts that justify the opinion and are damaging to the subject. (See Gross, 82 NY2d at 153—54; Guerrero v. Carva, 10 AD3d 105, 112 [1st Dept 2004].)
In applying the law to the facts, the court parsed plaintiff’s allegations, separating the actionable from non-actionable contentions.
As to the non-actionable claims, the court explained:
Here, Elyssa’s post dated January 23, 2023, in which she refers to or accuses plaintiff of “evil” and or “disgusting” acts that violate the Code of Medical Ethics, is clearly unactionable: neither “evil” nor “disgusting” are capable of a precise meaning that is readily understood and, in this context, “violating the Code of Medical Ethics” can refer to an entire range of conduct that is no more specific than “evil” or “disgusting.” (See Thomas H. v Paul B., 18 NY3d 580, 584 [2012] [finding that to constitute a statement of fact, the words must have a precise meaning, capable of being proven true or false, and whether they are likely to be understood by the listener to be opinion].)[FN1]
The court reached a different conclusion, however, as to different, more particular allegations:
However, the statements made in Elyssa’s second and third posts from September 1 and 3, 2023, are more particular, i.e., that plaintiff had affair with Jayme while her father was dying at Memorial Sloan Kettering and that this conduct was what constituted a violation of a medical Code of Ethics. In contrast to “evil” and “disgusting,” these statements of fact do have a precise meaning that can be proven false, i.e., that plaintiff did not engage in an affair, or at least not while Jayme’s father was a patient, and that no ethical code was compromised. While defendants may be correct that, ordinarily, a statement concerning an affair does not necessarily tend to injure another in his or her trade, business, or profession (see Matter of Konig v CSC Holdings, LLC, 112 AD3d 934, 935 [2d Dept 2013]), this ignores the fact that plaintiff directly connected the affair to a Code of Ethics that bounds medical professionals, a Code of Ethics which indeed contains guidelines against romantic or sexual interactions between doctors and third-parties “whose decisions directly affect the health and welfare of the patient.” (See NYSCEF doc. no. American Medical Association Code of Ethics, Chapter 9, Section 1.2, entitled “Romantic or Sexual Relationship with Key Third-Parties.”)
The court concluded that, “[u]nder these circumstances, Elyssa’s statements do reflect upon plaintiff’s profession” and, therefore, “plaintiff’s cause of action for defamation per se—to the extent it is premised on Elyssa’s allegation of unprofessional conduct—cannot be dismissed.”