In Hafez v. Accuracy in Media, Inc., No. 161112/2023, 2026 WL 674038 (N.Y. Sup. Ct. Mar. 05, 2026), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s defamation claim.
This decision provides a good analysis of how courts assess the issue of the “mixed opinion” in the context of a defamation claim:
The motion to dismiss the defamation claim is denied. For purposes of a pre-answer motion to dismiss, even under the more rigorous “substantial basis” standard, Plaintiffs have sufficiently alleged claims for defamation. “Defamation is the making of a false statement about a person that ‘tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society’ ” (see Frechtman v Gutterman, 115 AD3d 102, 104 [1st Dept 2014] quoting Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379 [1977], cert. denied 434 US 969 [1977]). To allege defamation, there must be (1) a false statement (2) published to a third party, (3) without privilege or authorization, (4) which causes plaintiff harm, unless the statement is one of the types of publications actionable regardless of harm (see Cardali v Slater, 56 Misc.3d 1003, 1008 [Sup. Ct, NY County 2017] citing Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). Here, there is no dispute that the allegedly defamatory statements were published to third parties without Plaintiffs’ consent.
While Defendants argue that Plaintiffs failed to allege damages, the Court finds this argument to be without merit, especially at this pre-answer motion to dismiss stage. The United States Supreme Court has made clear that “actual injury” for purposes of damages on a defamation claim customarily includes “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering” (see Nolan v State, 158 AD3d 186, 191-192 [1st Dept 2018] quoting Gertz v Robert Welch, Inc., 418 US 32, 350 [1974]). Plaintiffs allege their reputations in the community were so harmed and they suffered humiliation so severely that they stopped attending classes, missed exams, and Memon’s experience was so bad she was granted an academic accommodation. Plaintiffs further allege they suffered reputational and economic harm since the defamatory statements prevented them from procuring post-graduation employment.
In any event, where, as here, the allegedly defamatory statements expose the plaintiffs to public contempt and ridicule and “induce an evil opinion of him [or her] in the minds of right-thinking person” a plaintiff need not allege special damages (Rinaldi v Holt, Rinehart 7 Winston, 42 NY2d 369, 379 [1977], cert. denied 434 US 969 [1977]; see also LeBlanc v Skinner, 103 AD3d 202, 214 [2d Dept 2012]). Labelling someone a “leading antisemite” would, in the mind of a right-thinking person, induce an evil opinion of the labelled individual.
Defendants’ several arguments for the allegedly defamatory statements being non-actionable fail, at least on this pre-answer motion to dismiss. First, Defendants’ take the irreconcilable positions that an accusation of antisemitism is a non-actionable opinion and then argue in the very same brief that the accusations of antisemitism are substantially true.Putting that contradiction aside, and given the context of this case, labelling Plaintiffs “Columbia’s Leading Antisemites” is an actionable mixed opinion. The First Department has repeatedly found that statements alleging cultural insensitivity and racism that “imply they are based upon facts which justify the opinion but are unknown to those reading it” can constitute actionable mixed opinions (see, e.g. Davis v Brown, 211 AD3d 524, 525 [1st Dept 2022] [letter implying Plaintiff was responsible for culturally insensitive show, even though she took no part in managing, directing, or approving the show, was actionable]; Pezhman v City of New York, 29 AD3d 164, 168 [1st Dept 2006] [letter falsely claiming teacher was mentally incompetent and racist was actionable]; see also Guerrero v Carva, 10 AD3d 105, 112-113 [1st Dept 2004] [flyers falsely alleging plaintiffs engaged in racial discrimination against employees were actionable]). Considering Defendants hold themselves out to be investigative journalists, their statement that Plaintiffs were “Columbia’s Leading Antisemites” implies the statements were not mere opinion but were based on some facts showing Plaintiffs were actually leading antisemitic campaigns (see also Stega v New York Downtown Hospital, 31 NY3d 661, 676 [2018]; Sheridan v Carter, 48 AD3d 444, 446-447 [1st Dept 2008] [published statements that plaintiffs were racists who abused and economically exploited domestic employee were defamatory per se]).
The argument that Plaintiffs do not deny being antisemitic or that the statements are “substantially true” are without merit as Plaintiffs were not leaders of any organization that signed the Letter, and Plaintiffs obviously deny being antisemitic by virtue of filing this lawsuit. Defendants’ argument that they were simply asserting Plaintiffs’ political association is likewise unavailing. The defamatory nature of the statements is not that Plaintiffs were associated with certain student groups – the defamatory statements arise from falsely accusing Plaintiffs of being “leading antisemite.” Defendants’ argument based on the incremental harm doctrine is likewise unpersuasive.
Finally, Plaintiffs have alleged actual malice in nonconclusory fashion (see, e.g. Irizarry v Zelaya, 244 AD3d 591, 593 [1st Dept 2025]). Plaintiffs have set forth sufficient facts that Defendants published their statements about Plaintiffs in a grossly irresponsible manner (see, e.g. Lewis v Newsday, Inc., 246 AD2d 434, 435 [1st Dept 1998] citing Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). It remains an issue of fact whether Defendants’ reliance on an undisclosed third-party vendor to investigate Plaintiffs, and the widespread publication of serious and inflammatory statements based on very limited, outdated, and/or inaccurate articles rises to the level of reckless disregard sufficient to meet the actual malice standard (see also Smartmatic USA Corp. v Fox Corp., 213 AD3d 512, 512-513 [1st Dept 2023]). This is especially the case as Plaintiffs allege the information would have been easily verifiable through other available online sources, and implicitly the information could have been verified by seeking comment from the Plaintiffs themselves. Discovery may show that Defendants were so motivated by capitalizing off the events at Columbia that they did not care about the truth so long as they increased their donations and internet traffic.
The court further discounted defendants’ reliance on the case of Kipper v. NYP Holdings Co., Inc., 12 NY3d 348 (2009), finding that this case “only highlights why the issue of actual malice cannot be determined in this case at the pre-answer stage” since it “was issued on summary judgment, after an exchange of discovery and a more fully developed evidentiary record.”