In a recent decision, the New York Appellate Division, First Department, overturned a lower court’s dismissal of a defamation lawsuit brought by former tenants against their condominium, its managing agent, a board member, and an employee of the managing agent. The case, Dolcimascolo v. Board of Managers of Dorchester Towers Condominium, centered on allegations that the defendants made false statements to the police, leading to the arrest of one of the plaintiffs.

Lower Court Dismissal

The Supreme Court of New York initially dismissed the lawsuit, including the defamation claim, on the grounds that statements made in good faith to the police are privileged, even if false. The court found that the plaintiffs had not sufficiently alleged malice to overcome this qualified privilege.

Appellate Court Reversal

The Appellate Division disagreed, ruling that the plaintiffs had met the heightened pleading standard for defamation by detailing the substance, place, and manner of the alleged defamatory statements. The court also found that the plaintiffs had sufficiently pleaded the malice requirement necessary to survive dismissal.

Malice and Qualified Privilege

In defamation cases, qualified privilege protects statements made in good faith, such as reporting suspected criminal activity to the police. However, this privilege can be overcome if the plaintiff proves that the statements were made with actual malice – meaning with knowledge of their falsity or reckless disregard for the truth.

The Appellate Division determined that the plaintiffs’ allegations, combined with the evidence presented, raised a sufficient question of malice. The court highlighted the strained relationship between the parties, the defendants’ potential motive to stop the plaintiffs’ protests, and the possibility that the statements to the police were untrue or embellished.

In their complaint, the plaintiffs alleged a history of escalating tensions with the condominium board and its agents, including numerous unwarranted police calls and unjustified arrests. They claimed that after they vacated the condominium and began protesting their treatment, the defendants retaliated by falsely accusing one of the plaintiffs of making death threats to the police, leading to his arrest. The alleged defamatory statements were made by an employee of the managing agent and included in a charging document and affidavit filed with the police.

Implications for Condominium Disputes

This decision serves as a reminder that even statements made to law enforcement can be subject to scrutiny in defamation lawsuits. It underscores the importance of acting in good faith and avoiding malicious intent when reporting suspected criminal activity, especially in contentious situations like disputes between condominium boards and residents.

Read the lower court’s decision and then the First Department’s decision here.