Case of the Day – Wednesday, July 12, 2017


boots150429We’re offering up a little slug of neighbor law today, actually ‘neighbor-denouncing-neighbor’ law. Who knew that such dry topics as beachfront preservation and development could be flash points for acrimony?

In today’s case from New York State, the debate – and we can’t tell for sure what it was about, although it included beaches, landscapers and trespass – devolved into name calling. And that was when someone’s skin got a little thin.

Contrary to popular belief, slander isn’t an easy thing to prove, and it’s even harder to prove that the slander was collect damages from. So what if Saltzman called Galasso “no good” and a “criminal” and “connected?” The Court ruled it was protected opinion, and even if it weren’t, Galasso couldn’t show that Saltzman actually knew what he said was false.

The decision is kind of curious, because the Court seemed to apply a First Amendment standard to slander that is usually reserved for the news media, not private spats. But it was clear that the appellate court found the complainant, Mr. Galasso, not to be guilt free. The Court noted that he could have been prosecuted for criminal trespass, and implied that the fact that he was not should be victory enough.

slander150429Galasso v. Saltzman, 839 N.Y.S.2d 731 (N.Y.A.D. 2007). In the context of a heated dispute among residential property owners in Sands Point, a beach community in Nassau County, Galasso allegedly committed criminal trespass on Saltzman’s yard by removing trees and a fence. When he threatened to do more, Saltzman obtained a cease-and-desist order.

Subsequently, Saltzman allegedly said that he was intent on “getting” Galasso, who was “no good” and “a criminal.” He alleged that Galasso was “engaged in criminal conduct” and had “committed crimes” against Saltzman’s property in an effort to “destroy both our properties and our beach.” He also claimed that Saltzman had plaintiff “checked out, and I don’t care if he’s connected, I’m going to get him.”

true150429The statements were made to a former neighbor, a current neighbor and a local businessman. Galasso conceded that he held meetings with the subdivision neighbors to explain his protest actions.

When the trial court denied Saltzman’s efforts to get Galasso’s slander action dismissed, Saltzman appealed.

Held: The Court dismissed Galasso’s complaint in its entirety. The Court said that given the subjective context and the facts underlying Saltzman’s statements, the statements constituted opinion and were not actionable as a matter of law.

When Saltzman said

When Saltzman said “connected,” he wasn’t talking about the electric company.

Saltzman’s listeners were familiar with the issues in dispute and with the positions of each side. Saltzman’s references to criminality referred to the arguable criminal trespasses on his property and on common areas of the subdivision. The Court found that the record did not offer a reasonable basis for interpreting the statements to imply that Saltzman knew of additional, undisclosed facts regarding Galasso’s purported criminality.

Even if the statements were not protected opinion, the Court ruled, Galasso’s general allegations that Saltzman’s alleged lies had hurt his reputation and subjected him to scorn and hatred were insufficient to support his slander claims. A viable slander claim requires allegations of special damages, i.e., economic or pecuniary loss. And Saltzman’s use of the term “connected,” generally referring to an affiliation with organized crime, did not constitute slander per se (something exempt from the requirement that special damages be pled).

Finally, the evidence did not show that Saltzman’s statements were made with “actual malice,” that is, with a reckless disregard for the truth or with knowledge that it was false. Rather, the Court said, the statements were made in the context of Galasso’s purported demolition and reconstruction activities for which legitimate issues of fact exist, the question of whether they were authorized by the Village in each instance and whether they encroached upon Saltzman’s property rights.

For that matter, the Court said, Galasso could arguably be subject to prosecution for felonious criminal mischief.

– Tom Root


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