## Facts

- Elliot M. Gross served as Chief Medical Examiner of the City of New York.
- Between January 1985 and February 1986, a newspaper published a series of investigative articles about Gross’s handling of deaths occurring in police custody.
- The articles stated, among other things, that Gross produced “misleading or inaccurate” autopsy reports in police-custody cases; implemented “special handling” for such cases; personally performed many autopsies; and intervened to alter other pathologists’ findings.
- The articles referenced specific incidents, including a Brooklyn death allegedly involving police beating and the police shooting of Eleanor Bumpurs during an eviction.
- The reporting led to four criminal investigations into Gross’s conduct; each ended with findings of no evidence of professional misconduct or criminal wrongdoing.
- Gross filed a lengthy libel complaint based on multiple articles, alleging publication of false and defamatory statements.
- Defendants moved to dismiss for failure to state a cause of action under CPLR 3211(a)(7); lower courts dismissed substantial portions as nonactionable opinion.

## Issues

1. Whether, at the pleading stage under CPLR 3211(a)(7), the complaint adequately alleged defamatory statements of fact (provable true or false) rather than only constitutionally protected opinion.

## Decision

- The Court of Appeals reversed the order affirming dismissal to the extent it dismissed the libel claims.
- The court held the complaint alleged both nonactionable opinion and actionable assertions of fact.
- Because the articles included verifiable allegations about Gross’s conduct, dismissal at the preanswer stage was improper.
- The court reinstated the complaint to permit further proceedings.

## Legal Principles

- Defamation liability may be based only on statements that a reasonable reader would understand as asserting facts capable of being proven true or false.
- Pure opinion is absolutely protected under the New York Constitution and the First Amendment and is not actionable.
- Fact-versus-opinion classification depends on the communication as a whole, including content, tone, purpose, and the broader context in which it appears.
- Placement and presentation as investigative news reporting may signal to readers that challenged statements purport to describe factual misconduct, not mere rhetorical commentary.
- On a CPLR 3211(a)(7) motion, courts accept pleaded facts as true and grant the plaintiff favorable inferences; dismissal is appropriate only when the challenged language is nonactionable as a matter of law.

## Conclusion

The Court of Appeals held that investigative articles accusing a public official of specific, verifiable misconduct may contain actionable factual assertions even when accompanied by evaluative commentary, and that a complaint alleging such mixed content can survive a CPLR 3211(a)(7) motion to dismiss.


Gross v. N.Y. Times Co., 82 N.Y.2d 146, 623 N.E.2d 1163, 603 N.Y.S.2d 813 (1993)