Case of the Day – Tuesday, April 23, 2019

YOUR MOTHER WEARS COMBAT BOOTS

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 Arnie Saltzman called Phil Galasso “no good” and a “criminal” and “connected?” The Court ruled it was protected opinion, and even if it weren’t, Phil couldn’t show that Arnie 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, Phil Galasso allegedly committed criminal trespass on Arnold Saltzman’s yard by removing trees and a fence. When he threatened to do more, Arnie obtained a cease-and-desist order.

Subsequently, Arnie allegedly said that he was intent on “getting” Phil Galasso, who was “no good” and “a criminal.” He alleged that Phil was “engaged in criminal conduct” and had “committed crimes” against Arnie’s property in an effort to “destroy both our properties and our beach.” Arnie also claimed that he had had Phil “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. Phil conceded that he held meetings with the subdivision neighbors to explain his protest actions.

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

Held: The Court dismissed Phil’s complaint in its entirety. The Court said that given the subjective context and the facts underlying Arnold 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.

Arnie’s listeners were familiar with the issues in dispute and with the positions of each side. His references to criminality referred to the arguable criminal trespasses on his property and on common areas of the subdivision.

The Court did find that the record did not offer a reasonable basis for interpreting the statements to imply that Arnie knew of additional, undisclosed facts regarding Phil’s purported criminality. But even if the statements were not protected opinion, the Court ruled, Phil’s general allegations that Arnie’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, such as economic or pecuniary loss. And Arnie’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 Arnie’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 Phil’s purported demolition and reconstruction activities, for which legitimate issues of fact existed: the question of whether they were authorized by the Village in each instance and whether they encroached upon Arnold Saltzman’s property rights.

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

Quit while you’re ahead (or, at least, not yet behind), Phil.

– Tom Root

TNLBGray

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