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Legal Memorandum: Elements of Defamation in NY

Issue: What are the elements of Defamation under New York law?

Area of Law: Business Organizations & Contracts, Litigation & Procedure
Keywords: Defamation; Libelous statement
Jurisdiction: New York
Cited Cases: None
Cited Statutes: None
Date: 03/01/2010

Defamation, the making of a false statement about a person that “tends to expose the p[erson] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society,” can take one of two forms-slander or libel.  Generally speaking, slander is defamatory matter addressed to the ear while libel is defamatory matter addressed to the eye.  Libel is broken down into two discrete forms-libel per se, where the defamatory statement appears on the face of the communication, and libel per quod, where no defamatory statement is present on the face of the communication but a defamatory import arises through reference to facts extrinsic to the communication.

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Where the defamatory statement is libelous per se the plaintiff can recover damages without pleading and proving “special harm,” i.e., “the loss, usually monetary, of some gain or advantage which would have come to the plaintiff but for the defamation.”  If, however, the defamatory statement is libelous per quod, the plaintiff can only recover damages if [he or] she pleads and proves such harm.

Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 411-12, 412 n.3, 885 N.Y.S.2d 247, 250, 250 n.3 (1st Dep’t 2009) (citations omitted), leave to appeal denied,  ___ N.E.2d ___, (N.Y. Feb. 19, 2010).

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