Judge dismisses White Plains lawyer’s ‘ambulance chaser’ defamation lawsuit
An online depiction of White Plains lawyer Gerry E. Feinberg as an “ambulance chaser” was simply name-calling, a judge has ruled in dismissing a defamation lawsuit he filed.
Feinberg had represented Adelaide and Anthony Formisano of New Rochelle in a medical malpractice lawsuit against New Rochelle rheumatologist David Lans.
His clients claimed that Lans had not advised Adelaide Formisano of the risks of a drug he prescribed for her condition. She reacted to the drug, according to the 2016 complaint filed in Westchester Supreme Court, was hospitalized and suffered permanent injuries.
The first trial ended in a hung jury.
Around that time, in May 2019, according to the defamation complaint filed this year in Westchester Supreme Court, Lans”™ wife, Devora posted this comment about Feinberg on Yelp: “If you can”™t find a lawyer to take your case, this is the lawyer for you. Ambulance chaser is too good a term for him.”
Feinberg, representing himself, claimed that the comment subjected him and his law practice to scorn and ridicule and portrayed him as unethical.
Devora Lans’ attorney, Michael Katz of Katonah, answered that the Yelp posting consisted of nonactionable opinion.
To recover damages for defamation, Justice Terry Jane Ruderman ruled on June 22, it must be shown that a reasonable reader could have concluded that the statement conveyed facts about the plaintiff.
The language must have a precise, readily understood meaning, she said, citing a 2012 appellate court decision. It must be capable of being objectively characterized as true or false. The context must be considered, including whether it signals that the statement is likely to be opinion, not fact.
Ruderman found the phrase “ambulance chaser” imprecise, subjective and nonprovable.
Internet forums contain elements of both fact and opinion, she stated, that reasonable readers understand as opinions based on business interactions.
“Yelp in particular, provides an opportunity for people to post both negative and positive reviews, stating their opinions and their perceptions of the relative merits of the reviewed service providers,” Ruderman said. “It is the virtual opposite of a fact-laden context.”
Dismissal is warranted, she said, because the content and context of the allegedly defamatory statement do not form a viable basis for a claim.
Feinberg also lost the medical malpractice case. The jury issued a verdict in favor of Lans, when the case was retried last October.