It”™s OK to publicly renounce a developer as a criminal or refer to him as a vampire, a court has ruled, as long as your words seem more like opinion than fact.
A state appellate court has upheld a judge who had dismissed a libel complaint by developer Peter Stolatis against Miguel Hernandez.
“Expressions of opinion, as opposed to assertions of fact, are deemed privileged,” the appellate court ruled in citing legal precedent, “and no matter how offensive cannot be the subject of an action for defamation.”
Stolatis said he thinks the appellate court ruled incorrectly, but he does not plan to appeal.
“Mr. Hernandez severely harmed my standing in the community and my company”™s standing in the community,” he said. “What else can I say about it? I”™m not pleased, but it is what it is.”
The case concerns the Hidden Cove waterfront project at the abandoned Brandreth Pill Factory, a 19th-century complex in Ossining that was listed on the National Register of Historic Places.
Plateau Associates LLC of Pleasantville acquired the five-acre property in 2001, where its owners, Peter and Nicholas Stolatis, are trying to build a 137-unit apartment building.
Plateau got a demolition permit in 2008, but when it began razing a building in 2015, it did not have an approval from the village Historic Preservation Commission.
Hernandez, a former Village of Ossining trustee and mayor and then a member of the commission, lived next to the site. He called officials, and the village stopped the work.
Hernandez posted photographs and comments on two Facebook pages devoted to Ossining.
Photos were captioned, “Peter Stolatis at the site of his crime,” and, “Additional photos of the crime scene.”
A picture of Stolatis drew a comment: “This foto disproves the myth that vampires only come out at night.”
Another comment said Stolatis had failed to repair a building so that it would be destroyed by the elements, in what is known as “demolition by intentional neglect.”
Stolatis sued Hernandez for libel. He had never been charged with a crime, his complaint says, and Hernandez knew the Facebook statements would damage his personal and professional reputation.
He accused Hernandez of actively opposing the Hidden Cove project ever since Plateau had tried to buy Hernandez”™s property but then refused to pay an asking price of four times the fair market value.
The Facebook photos and comments were meant as reporting, Hernandez said in his answer to the lawsuit, on Stolatis”™ failure to comply with village laws.
He said Stolatis was trying to punish him for exercising his right of free speech.
Justice Terry Jane Ruderman of the Westchester Supreme Court dismissed the case in 2016, granting summary judgement to Hernandez. The appellate court affirmed her ruling.
Even apparent statements of fact can assume the character of opinion, the court ruled, where the audience expects rhetoric or hyperbole. The writing as a whole must be considered, including its tone and purpose.
A reasonable reader would have believed that Hernandez was communicating opinions about Stolatis”™ intentions to preserve or replace the building. One could argue that Hernandez made false factual assertions, but “viewing the entire series of posts as a whole,” the court ruled, “we conclude that the posts constituted an expression of protected opinion.”
Justices Alan D. Scheinkman, Jeffrey A. Cohen, Colleen D. Duffy and Linda J. Christopher concurred.
Plateau has sunk $8 million in the project and still does not have the approvals it needs.
“We”™ve been getting the short end of the stick for the last 12 years,” Stolatis said, “because we didn”™t buckle under to Mr. Hernandez”™s requests.”
In a sense, the Facebook hyperbole mirrors the social media of the 19th-century, when snake oil hucksters sold cure-all patent medicine remedies to a gullible public. Benjamin Brandreth, whose factory Plateau bought, peddled a “vegetable universal pill” to purge impurities in the blood.
Brandreth created a mass market for his pills by promoting miracle cures in the new mass advertising business. His branding success necessitated building a larger facility in 1838, in Ossining.
