Are You Appealing?

ARE YOU APPEALING? Defamation

Of course you are.

But are you in the legal sense? What we mean here is: are you taking an appeal in an appellate court and if so, can you win?

At J&G we handle all types of litigation which includes starting at the basic trial courts and proceeding up the appellate ladder.

In New York State there are four Appellate Divisions divided very roughly by geography. The Second Department of the Appellate Division is a very busy court as it covers not only Orange County but Brooklyn, and  then out to Suffolk County as well as counties in between [but skips the Bronx and Manhattan, which is the province of the First Department].

We recently were successful in defending our client both at the trial level and then in an appeal in the Appellate Division in a slander/defamation lawsuit.

Here are the facts.

• At a local yacht club, our client got into a verbal brouhaha with another member and that member’s guest.
• Ultimately, our client made a formal charge to the governing body of the club and offered his opinions about the actions and activities of the member and his guest.
• The governing body, as required by its by-laws, held a hearing at which time all parties were provided the opportunity to be heard.
• The board eventually decided that the member had done nothing wrong but that, indeed, the guest had so she was prevented from returning for a year.
• Rather than take their punishment, a lawsuit was brought.

So, you may be asking, why was our client sued? It was for expressing his opinions.

The member and his guest alleged in the complaint, a public document, that our client said to the Board that he had been “targeted” by the other two. It was also alleged by the two plaintiffs that our client claimed that the actions of the plaintiffs could have been nothing less than a “personal attack” on him. Yes, he used those words.

At the trial level, in the form of a written motion, we submitted the statements made and the relevant law, arguing to a Supreme Court justice that the case against our client should be dismissed. The court found that he expressed protected speech which were his opinions. Not satisfied, the plaintiffs appealed to the Appellate Division. After more legal research and then drafting and submitting our brief, we traveled to Brooklyn for oral argument before a panel of four judges. The same arguments were made.

In an appeal, if the case is not resolved beforehand, one side will win, the other will not. The underlying opinion may be upheld or it may be reversed.

This four judge panel unanimously agreed that the statements of our client were “nonactionable opinion” and affirmed the Orange County judge.

If you get sued for what you say or what you don’t say or what you do or don’t do, seek out a qualified attorney.

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.  Prior results do not guarantee a similar outcome.

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Robert M. Lefland is Senior Counsel and primary attorney in charge of Personal Injury at J&G. He can be reached by calling 866.303.9595 toll free or 845.764.9656 and by email .  He is available by appointment on Saturday’s.  If you need his immediate attention, you can reach him on cell.