Litigation is alternatively a blood sport or the sport of kings. It takes a lot of money and sometimes tempers flare. In Englese v Sladkus 2018 NY Slip Op 50625(U) Decided on April 25, 2018
Supreme Court, New York County St. George, J. we see what happens when a litigant speaks candidly without any filtering.
“Steven D. Sladkus, an attorney, brings this defamation action against Melanie Englese a/k/a Melanie Sisskind, his former client. Ms. Englese and her husband initiated a legal malpractice action against Mr. Sladkus and his former law firm by summons and notice on June 4, 2015 and followed with a complaint on September 27, 2015. Their complaint asserts that Mr. Sladkus and his former firm committed malpractice when they 1) allowed the statute of limitations to expire as to two allegedly appropriate defendants, and 2) due to this and other alleged malpractice, forced Ms. Englese and her husband to accept a poor settlement. The settlement Mr. Sladkus negotiated for Englese and her husband was finalized on June 5, 2012. The legal malpractice action, Englese v Sladkus (Sup. Ct., NY County, St. George, J., index No. 101006/2015 [Englese]), is also before this Court and is the subject of a pre-answer motion to dismiss, which this Court addresses in a separate decision. Additional details about the Englese case are contained in the Court’s interim order on the pre-answer motion.
In the instant case, Mr. Sladkus asserts that around August 22, 2015 — more than two months after the summons with notice was filed in Englese but a little more than a month before the Englese complaint was filed — Ms. Englese defamed him to William Suk, one of his key business relations, stating that Mr. Sladkus “(i) is a lawyer who ‘gives poor advice’; (ii) is ‘a shitty lawyer’; (iii) caused them to lose ‘a ton of money in their settlement with the sponsor; (iv) ‘took advantage of [her and her husband] because [her own husband] was not effectual in the negotiations and because [she] was in [her] final term of pregnancy’; and (v) ‘theatened [her and [*2]her husband] into settling’ the litigation against the sponsor” (Complaint, ¶ 29). Mr. Sladkus learned of this alleged defamation when Mr. Suk contacted him and informed him of such. The complaint also asserts, on information and belief, that Ms. Englese has maligned him to other individuals as well.”
“”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” (Frechtman v Gutterman, 115 AD3d 102, 104 [1st Dept 2014] [citations and internal quotation marks omitted]). Opinion, on the other hand, is not actionable (see Parks v Steinbrenner, 131 AD2d 60, 62 [1st Dept 1987]). As stated earlier, Mr. Sladkus has cited five alleged defamatory comments that Ms. Englese allegedly made about him: 1) he gives poor legal advice, 2) he is a shitty lawyer, 3) he caused Ms. Englese and her husband to lose a lot of money in their settlement, 4) her husband was not effectual in the settlement negotiations and Ms. Englese was especially vulnerable due to the advanced stage of her pregnancy, and Mr. Sladkus [*4]took advantage of this, and 5) Mr. Sladkus threatened her and her husband into settling the case.
Although Ms. Englese argues to the contrary, the Court finds that the allegations of defamation are not too vague to support a claim. As Mr. Sladkus points out, the complaint sets forth the approximate date of the occurrence, the place of the occurrence, and the words Ms. Englese allegedly used. Ms. Englese’s arguments in support of her motion to dismiss, including that not all the words were in quotes and that the quotes contain brackets are unpersuasive.
Next, the Court concludes that the first, second and fourth of these five statements should be dismissed as opinion. Ms. Englese’s statements that Mr. Sladkus is a bad lawyer and gives bad advice are clearly opinion and, as such, are not actionable. The fourth statement listed above, as described in the complaint, is opinion because it focuses on the facts that she was in the last term of her pregnancy and that her husband was ineffectual. The statements that Mr. Sladkus caused Ms. Englese and her husband to lose a “ton of money” is set forth as fact and speaks to Mr. Sladkus’ competence in his profession, and the statement that Mr. Sladkus threatened them into settling also is a factual allegation. Because the comments, in their entirety and in their proper context, essentially accuse him of incompetence in his profession, he sets forth a claim for defamation per se (Cf. Carney v Memorial Hospital and Nursing Home of Greene County, 64 NY2d 770, 772 ). Moreover, as this constitutes defamation per se, the complaint does not have to assert special damages as to this claim (see Nolan v State, 158 AD3d 186, 191 [1st Dept 2018]).”