Disputes among owners of cooperative or condominium units occur sporadically. Sometimes they arise from contests over the annual meeting ritual of electing board members. When does this animosity among owners rise to the level of libel for which damages may be recovered? The answer depends on the words and facts of the dispute.
Golub v. Tang was an action for libel. The plaintiff, Benjamin Golub, and the defendant, Helen Tang, were the owners of residential units in the Greentree
Condominium, located on East 31st Street in Manhattan. Both parties had been members of Greentree’s board of managers. The complaint alleged that, in 2003, Tang obtained a number of proxies from other unit-owners in connection with an election for members of the board and used those proxies against Golub so as to deny him re-election.
According to the complaint, sometime after the election, Golub and Tang had a conversation in the lobby of the building about Tang’s use of her proxy votes. Thereafter, on October 7, 2003, Tang drafted a letter, which she placed under the doors of a number of unit-owners. The letter stated that Golub and Tang had a one-minute encounter in the lobby during which time she was “insulted and threatened” in that she was told that she was a “low-life,” was “fat,” and would be “put into a lot of trouble.”
The letter also stated that, since his defeat for re-election, Golub had been on a “rampage,” was “bitter and resentful,” had been “verbally bashing” other unit-owners, and that it was a “shame and disgrace” for Golub to “try to cower people into submission to his personal agenda and hunger for power.”
The complaint asserted two causes of action. The first was for libel, alleging that the statements in the letter were false, malicious, and made with reckless disregard for the truth. The second, which alleged that the letter violated Golub’s right to privacy, appeared to assert a claim for intentional infliction of mental distress. Tang, thereafter, moved to dismiss the complaint for failure to state a cause of action.
As to the first cause of action for libel, in order to prevail on such a claim, the court said that a plaintiff must show either that the statements at issue are libelous, in which case the plaintiff must also show special damages, or that the statements are libelous per se, in which case special damages need not be shown. Here, Golub had not alleged special damages. As such, it was incumbent upon him to show that the defendant’s letter was libelous per se.
The court said that it had to resolve, in the first instance, the question of whether particular words are reasonably susceptible to a defamatory meaning so as to be actionable. Generally, a written statement may be defamatory the court said (and quoted a prior decision) ‘“if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community.’” In determining whether a statement is libelous per se so that actual damages need not be proven, the courts have focused on five types of statements. It has generally been held that words constitute libel if they (1) implicate someone in the commission of a crime, (2) attribute to someone a loathsome disease, (3) involve unchaste behavior in a woman or (4) ascribe homosexual behavior, or (5) affect plaintiff in his or her trade, occupation, or profession.
Tang’s letter did not meet any of these criteria. Although the complaint alleged that the letter had damaged Golub’s reputation as an attorney with his existing clients in the building, it was well settled, said the court, that a publication is defamatory only if it imputes incompetence or unfitness in the performance of one’s profession, thus constituting an attack on a plaintiff’s professional ability. Tang’s letter did not attempt to impugn Golub’s professional ability. The letter did not therefore contain any statements that were libelous per se. On this ground alone, the court determined that the first cause of action should be dismissed in the absence of any allegation of special damages.
Moreover, it was clear to the court that the statements contained in the letter were not otherwise actionable as a matter of law. A cause of action for defamation does not lie with respect to a statement that is an expression of opinion, noted the court. Whether a statement is an expression of opinion or an actionable expression of fact is a question of law for the court to determine. In assessing a claim that a party has been libeled, the focus is on the context of the whole communication, its tone and apparent purpose, with the key inquiry being whether the challenged statement reasonably appears to be conveying objective facts about the plaintiff.
In this respect, Tang’s letter consisted almost entirely of her opinion about him. Other than her statement that he called her a fat low-life and threatened to cause her trouble, it did not convey any objective facts about Golub that were capable of being proven true or false. As to the alleged name calling and threat, such a statement by Tang, even if false, would hardly rise to an actionable level since Tang’s accusations entail only a minor instance of rude behavior. The court therefore agreed with Tang that the first cause of action for libel failed to state a cause of action.
As to the second cause of action, it appeared to assert a claim for intentional infliction of emotional distress. To prevail on such a claim, the court said that a plaintiff must show that the defendant engaged in conduct that was so extreme and outrageous in degree and character as to go beyond all possible bounds of decency and that this conduct could be regarded as atrocious and utterly intolerable in a civilized society. In the court’s view, the facts alleged here did not rise to this exacting standard, and the second cause of action was also dismissed. Thus, the complaint was dismissed in its entirety.
Comment: When a co-op or condo election dispute arise from time to time, the language used by participants may be harsh and unpleasant. Whether it amounts to libel depends on the actual words used. This case suggests that harsh language, especially if it is couched as an opinion, is merely rude behavior that does not give rise to legal sanctions.