## Facts

- Teenagers created a Facebook group called “90 Cents Short of a Dollar.”
- The group had five officers and six total members (including the officers).
- The group was “secret”/closed: it had no public content, did not appear on members’ profiles, and posts were visible only to members.
- In a thread about an “11th cent,” four teen officers posted crude comments stating, among other things, that the “11th cent” acquired AIDS by having sex with a horse and a baboon, had sex with a “fireman prostitute,” and “morphed into a devil” in a picture.
- The thread also contained other juvenile, obscene jokes aimed at group members (for example, accusing someone of having sex with a dog).
- Denise E. Finkel sued several of the teens (including Michael Dauber, Melinda Danowitz, Leah Herz, and Jeffrey Schwartz), alleging she was the “11th cent” and that the posts were defamatory.
- The posts did not use Finkel’s name, and the record did not show that the secret group’s content was accessible to anyone outside the small circle of members.
- Finkel moved for partial summary judgment on liability for defamation, seeking to proceed to a damages-only trial.
- Defendants cross-moved for sanctions under 22 NYCRR 130-1.1, arguing the action was frivolous.

## Issues

1. Whether the Facebook posts about the “11th cent,” viewed in their full setting, would be understood by a reasonable reader as asserting facts about Finkel or instead as crude joking, satire, or hyperbole.
2. Whether the statements were “of and concerning” Finkel where she was not named and the comments referred only to an “11th cent.”
3. Whether the publication element of defamation was satisfied given the secret, limited-membership Facebook group and the lack of proof the posts spread beyond it.
4. Whether Finkel was entitled to partial summary judgment on defamation liability.
5. Whether defendants were entitled to sanctions on the ground that the lawsuit was frivolous.

## Decision

- The court denied Finkel’s motion for partial summary judgment on liability.
- The court concluded the challenged posts—although vulgar and offensive—were so exaggerated and implausible (e.g., contracting AIDS through sex with animals, “morphing into a devil”) that they could not reasonably be read as factual statements about the plaintiff.
- The court treated the setting as important: the posts were made in a “secret” Facebook group designed “just for fun” and “inside jokes,” with a tiny audience of teenagers engaged in obvious mockery.
- The limited and private audience also weighed against the claim, because the plaintiff did not show the posts were accessible outside the closed group in a way that would plausibly cause reputational harm in the community.
- The court denied defendants’ cross-motion for sanctions, finding that even though the claim failed, it was not frivolous under 22 NYCRR 130-1.1.

## Legal Principles

- Defamation (libel) requires a defamatory statement of fact, falsity, publication to a third party, identification (“of and concerning” the plaintiff), fault, and resulting harm (unless presumed damages apply).
- Courts distinguish actionable fact from protected opinion, parody, and rhetorical hyperbole by examining the language used and the full setting, including tone, purpose, and audience expectations.
- Statements that are plainly impossible or fantastical, and that no reasonable reader would take literally, are not actionable as defamation because they are not provable as true or false factual assertions.
- “Of and concerning” requires that listeners or readers reasonably understand the statement to refer to the plaintiff, not merely that the plaintiff believes it does.
- Publication requires communication to someone other than the plaintiff; the scope and nature of dissemination may bear on whether the alleged reputational injury is plausible.
- Summary judgment is improper where the movant fails to show entitlement to judgment as a matter of law on each element of the claim.
- Sanctions under 22 NYCRR 130-1.1 require frivolous conduct; an unsuccessful claim may still avoid sanctions if it is not completely without merit and is not brought to harass or needlessly increase litigation costs.

## Conclusion

In Finkel v. Dauber, the court held that obscene, over-the-top statements posted in a secret, small Facebook group of teenagers about an unnamed “11th cent” were nonactionable because a reasonable reader would view them as juvenile joking and hyperbole rather than factual claims about the plaintiff; the court therefore denied the plaintiff’s request for summary judgment on defamation liability and also denied the defendants’ request for sanctions.


Finkel v. Dauber, 906 N.Y.S.2d 697 (2010)