“Screwed” by Contractor, then Sued by Contractor: Adding Insult to Injury

Written By: Randy J. Heller


A family in upstate New York entered into a contract with Kessler and Associates for the construction of a single-family residence. It was the first house in a sub-division of nine building lots. Construction began but was halted when a dispute arose. The family refused to make further payment until certain defects were cured. Kessler filed a mechanic’s lien for unpaid balances.
In the middle of this dispute, the family posted a sign on its property for six weeks reading: “R. KESSLER SCREWED US BEWARE.” When the family commenced a lawsuit for damages allegedly caused by the contractor, Kessler counterclaimed for defamation, based on the language of the sign. The plaintiff moved to dismiss the counterclaim on the grounds that it was mere opinion. The lower court refused to dismiss the defamation counterclaim and an appeal was taken.
The Appellate Division, Fourth Department affirmed the lower court’s decision. It stated that the claim for defamation could proceed. It stated that the sign was “reasonably susceptible of a defamatory connotation.” On the subject of whether it was mere opinion, the court held that “it is a mixed statement of opinion and fact” and is “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it.” Therefore, the claim for defamation survived the motion to dismiss.
Assuming that pure statements of opinion are not actionable, query what opinions do not imply that they are based upon facts that justify the opinion? Wouldn’t most opinions be subject to the same analysis? The dissenting opinion certainly thought so.
Perhaps the takeaway is to resist the temptation to take revenge on your contractor by posting signs impugning its competence. Or at least preface statements of your dissatisfaction with the words “in my opinion.” 

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about the authors

Randy J. Heller


For over forty years, Mr. Heller has specialized in construction law and litigation, representing some of the largest and most successful contractors in the nation.

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