New York's Cooperative and Condominium Community
Richard Siegler & Dale Degenshein in Legal/Financial on December 16, 2015
The co-op sued for libel. The court described the elements as a false statement, published without authorization, constituting fault by, at least, a negligence standard that causes special harm or is defamatory, per se. The defendants sought to have the complaint dismissed, arguing that the statements were protected by the common interest privilege, which provides, in a nutshell, that when people share a common interest, statements concerning that common issue are qualifiedly protected. The rationale is that the flow of information between people who share a common interest should not be impeded.
But the privilege does not apply when the information is published to others outside the community. The court found that the website material was not disseminated solely to those in Trump Village – there was no password or other limitation as to who could view the website material. Anyone who has access to the internet can see the information. Indeed, the court adopted the co-op’s assertion that, when the words “Trump Village” are typed into Google, the website appears as the fourth choice on the first page of the search engine; when typing “Igor Oberman,” that is the second result. The court concluded that Bezvoleva and Yeselson were not shielded by the common interest privilege.
Moreover, the court pointed out that the common interest privilege can be overcome by a showing of malice, that is, the author knew the statement was false or he had a reckless disregard for the truth. There was a history of ill-will between the parties. Yeselson and others in a 2012 complaint alleged that Oberman harassed Yeselson and attempted to evict her. Thus, the court found – at this early stage of the litigation – that even if the statements were protected by the common interest privilege, there was a sufficient showing of malice that would preclude dismissal of the complaint.
As the appeals court told us in Levandusky v. One Fifth Avenue Apartment Corp. 25 years ago, cooperatives and condominiums are quasi-governments – “a little democratic sub-society of necessity.” The board makes decisions for the building and, thus, the apartment owners. And if an owner does not like the way the building is being run, there are things he or she can do, all within the dictates of a democracy, such as run for the board or propose a slate or complain to management and the board. Depending on the nature and severity of the alleged issue, he or she can call a governmental agency to complain about building conditions or even start a lawsuit.
If owners want to solicit information and support from other apartment owners, they can write letters, and even if the owners’ statements are questionably defamatory, they may be protected by the common-interest privilege if the complaining owners keep it “all in the family.”
In other words, the common-interest privilege may apply if the information is communicated only to those within the community who have an interest in those same common issues. What a complaining apartment owner cannot do, however, is make (arguably defamatory) assertions on the internet or in a publication for all to see.
The defendants in this case raised just about every possible defense to the publication (and alleged authorship) of the statements on the website, and the court analyzed, and disposed of, every argument.
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