In Gross v. New York Times Co., 82 NY2d 146, 623 NE2d 1163, 603 N.Y.S.2d 813 (1993), the Court of Appeals addressed the issue of whether certain statements made in a series of articles published in the New York Times were actionable as defamatory statements. The Times had published a series of articles which made certain statements about the City's Chief Medical Examiner at the time, Elliot Gross.
The trial court dismissed the libel claims, finding that the Times articles contained only the opinions of the interviewees and the Times' staff, and therefore were not actionable. The Appellate Division affirmed.
The Court of Appeals reversed, finding that although the articles contained protected opinions, they also contained "defamatory assertions that a reasonable reader would understand to be advanced as statements of fact". Id., at 151.
Among those facts were accusations that Gross engaged in "cover-ups, directed the creation of misleading' autopsy reports and was guilty of possibly illegal' conduct.
The Court concluded that because these accusations, taken in context, appeared to convey "facts" which could be proven true or false, the were actionable. Id., at 154-155.
The Court of Appeals set forth a three-part test for distinguishing statements of protected opinion from those implying actionable facts:
(1) whether the language at issue has a precise meaning which is readily understood or whether it is indefinite or ambiguous;
(2) whether the statement is capable of being proven true or false;
(3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to "signal . . . readers or listeners that what is being read or heard is likely to be an opinion, not fact" (Gross, 82 NY2d at 153.)