Wade Clark Mulcahy LLP

This past week, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/10/DeRicco-v-Maidman.pdf">DeRicco v Maidman</a></em>, the First Department of the Appellate Division of the Supreme Court of New York reversed a trial court decision that denied a defendant patient’s motion to dismiss an orthodontist’s defamation claims against them.  The claims were brought by the orthodontist and his professional corporation against the patient and his parents after the parents posted an unfavorable (but anonymous) Google review.

The First Department held that the review, which asserted that the orthodontist charged hidden fees, was not open during his stated business hours, and “did a horrible job” on the patient’s braces rendering the patient’s teeth “crooked and misplaced”, contained elements of both fact and opinion but was not actionable under New York law.

Generally, NY courts presented with defamation suits must consider the “circumstances and [ ] the broader social context (i.e., the factual background)” to evaluate whether the message would be taken literally or figuratively by the ordinary person. <em>Steinhilber v. Alphonse</em>, 501 N.E.2d 550, 555 (N.Y. 1986). Here, the First Department considered the review in its overall context; for more than a decade, New York courts have noted that readers “give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” With this in mind, the court held that the review of the orthodontist posted by the patient’s parents would be understood by a reasonable reader to be “pure opinion” based on its anonymity and its “arguably loose, figurative, or hyperbolic tone.”

Thus, the First Department ordered the trial court to dismiss the orthodontist’s complaint against the patient and his parents.   Thanks to Jason Laicha for his contribution to this post.   Please email <a href="mailto:bgibbons@wcmlaw.com">Brian Gibbons</a> with any questions about defamation claims and the defenses thereto.