Here is the full decision and order on the recent "Yelp Defamation" suit. What was not reported in the press was that the "defamed" home improvement contractor was unlicensed.
Decided on September 10, 2015
Civil Court of the City of New York, Richmond County
Technovate LLC d/b/a MR. SANDLESS OF STATEN ISLAND and MATTHEW GARDINER, Plaintiff,
Emily Fanelli a/k/a EMILY OLIVO, Defendant.
Emily Fanelli, Claimant, ,
Technovate LLC D/B/A MR. SANDLESS OF STATEN ISLAND Defendant.
Technovate LLC and Matthew Gardiner represented by:
Jeffrey David Eisenber, ESQ.
341 Yetman Avenue,
Staten Island, NY 10307
Emily Fanelli a/k/a Emiluy Olivo Self Represented
"A good name is rather to be chosen than great riches." Proverbs 22:1.
Mr. Sandless, which is a national franchise, advertises itself as an "affordable wood floor refinishing without the hassle of dust, odors and long drying periods." It promotes that its chemicals are "green" certified with no mess to clean up. The service is guaranteed for five years. The website advertisement also offers traditional sanding methods.
A. Are the Internet Postings of the Defendant Libel Per Se?
In New York defamation is defined as the making of a false statement of fact which "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace" [Rinaldi v Holt, Reinhart & Winston, 42 NY2d 369, 379, cert denied 434 US 969 (1977)]. A libel action cannot be maintained unless it is based on the published assertion of fact rather than on assertions of opinion [Brian v Richardson, 87 NY2d 46 (1995)]. For defamation purposes "publication" means communicated to a third person.
B. Are the Plaintiffs Entitled to Damages?
When a plaintiff establishes that the defendant's statements amount to defamation per se, there is no need to prove special damages. The law presumes that the making of the statement inflicts harm to the plaintiff's reputation entitling the defamed plaintiff to damages. Special damages, that is economic loss, arising from the publication of the defamation to third parties, must be proven in all cases were defamation per se is not applicable.
C. Should Plaintiff Be Licensed?
Neither plaintiff, Technovate nor Gardiner is licensed as a home improvement contractor pursuant to New York City Administrative Code (NYCAC) §20-386. Plaintiffs contend that they are not required to be licensed by the New York City Department of Consumer Affairs. The statute defines a "home improvement" as "the construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement or addition" to a building used for residential purposes. Excluded from the definition is "painting" not incidental or related to a home improvement.
D. Defendant's Small Claims Action.
Defendant's small claims action was amended to eliminate Gardiner as an individual defendant and to allow her to proceed against Technovate LLC d/b/a Mr. Sandless of Staten [*8]Island. This entity agreed to be the named defendant even though as noted above the "contract" between the parties is between the claimant and "Mr. Sandless" as a trademarked entity at an undisclosed address but with New Jersey telephone numbers and a statement that it services Morris and Union Counties.
Plaintiff Gardiner has established that he has suffered damages as a result from the per se defamatory statements posted by defendant Fanelli on-line. He is entitled to a judgment of $1,000.00 with interest from the date of judgment costs and disbursements.
Dated: September 10, 2015
Staten Island, NY
HON. PHILIP S. STRANIERE
Judge, Civil Court"