Steven Rosner v Amazon Inc.
S132 A.D.3d 835, 18 N.Y.S.3d 155 (2d Dept. 2015)
This is a defamation case between plaintiff Rosner and Amazon.com.
Plaintiff sued Amazon for defamation after Amazon refused to remove a bad review on Plaintiff’s listing of its book for sale on Amazon’s website. The Court granted Amazon’s motion to dismiss the case as Plaintiff had no valid claim for defamation.
The alleged “defamatory” statement made in the review was mostly opinion based, with the exception of one factual accusation that Plaintiff had sent unsolicited email advertisements. This factual accusation was admitted by Plaintiff to be true, and so a true statement followed by a customer’s opinion cannot constitute a defamation claim.
Rosner v. Amazon.Com, 2016 NY Slip Op 61121 (2016)
Plaintiff filed a motion with the Court of Appeals for leave to appeal to the Appellate Division’s dismissal of its case and award costs to Plaintiff. The Court of Appeals denied this motion.
132 A.D.3d 835
18 N.Y.S.3d 155
2015 N.Y. Slip Op. 07638
Steven ROSNER, appellant,
Supreme Court, Appellate Division, Second Department, New York.
Oct. 21, 2015.
OPINION TEXT STARTS HERE[18 N.Y.S.3d 156]
Steven Rosner, Brooklyn, N.Y., appellant pro se.
Davis Wright Tremaine LLP, New York, N.Y. (Edward J. Davis and Yonatan S. Berkovits of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and THOMAS A. DICKERSON, JJ.
In an action, inter alia, to recover damages for defamation, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Battaglia, J.), dated October 24, 2013, which granted the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint, and (2) a judgment of the same court dated November 13, 2013, which, upon the order, is in favor of the defendant and against him dismissing the amended complaint. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment ( seeCPLR 5501[c] ).
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a]  ).
The plaintiff is the author of a book which was available for sale on the website of the defendant, Amazon.com (hereinafter Amazon). On November 13, 2012, an anonymous review of the plaintiff’s book was posted on Amazon, stating that the plaintiff sent “unsolicited email advertisements peddling his book,” that “I encourage you not to support such unprofessional practices,” and “Help discourage this nonsense.” After Amazon refused to remove the review at the plaintiff’s request, the[18 N.Y.S.3d 157]
plaintiff commenced this action, inter alia, to recover damages for defamation. Amazon moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action. In an order dated October 24, 2013, the Supreme Court granted Amazon’s motion, and in a judgment dated November 13, 2013, the court dismissed the amended complaint.
In deciding a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, a court must accept the facts alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and determine only whether the factual allegations fit within any cognizable legal theory ( see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; El Jamal v. Weil, 116 A.D.3d 732, 733, 986 N.Y.S.2d 146). To state a cause of action alleging defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se ( see Kamchi v. Weissman, 125 A.D.3d 142, 156, 1 N.Y.S.3d 169). “ ‘Since falsity is a necessary element of a defamation cause of action and only “facts” are capable of being proven false, “it follows that only statements alleging facts can properly be the subject of a defamation action” ’ ” (id. at 156, 1 N.Y.S.3d 169, quoting Gross v. New York Times Co., 82 N.Y.2d 146, 152–153, 603 N.Y.S.2d 813, 623 N.E.2d 1163, quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 589 N.Y.S.2d 825, 603 N.E.2d 930).
Here, the plaintiff failed to state a cause of action to recover damages for defamation, since he acknowledged that the allegedly defamatory statement that he sent “unsolicited email advertisements” was true ( see Goldberg v. Levine, 97 A.D.3d 725, 726, 949 N.Y.S.2d 692; Salvatore v. Kumar, 45 A.D.3d 560, 563, 845 N.Y.S.2d 384), and the context of the remaining complained-of statements was such that a reasonable reader would have concluded that he or she was reading opinions, and not facts, about the plaintiff ( see Silverman v. Daily News, L.P., 129 A.D.3d 1054; Russell v. Davies, 97 A.D.3d 649, 651, 948 N.Y.S.2d 394).
The parties’ remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint, and thereupon dismissed the amended complaint.
2016 NY Slip Op 61121
Steven Rosner, Appellant,
Motion No: 2015-1297
Court of Appeals of New York
Decided on January 14, 2016
OPINION TEXT STARTS HERE
Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.