The opinion
Mahoney, P. J., and Levine, J.,
dissent and vote to affirm in the following memorandum by Mahoney, P. J. Mahoney, P. J. (dissenting). In our view, the taped message involved in this case contained statements actionable in a defamation action. In general, statements of opinion, as opposed to statements of fact, are not actionable in a defamation action. This distinction takes on even greater significance in light of the constitutional protection given to statements of opinion (see, Gertz v Robert Welch, Inc., 418 US 323 ). However, the common law distinguished between a pure expression of opinion, where the maker of the comment states the facts upon which the opinion *848 is based or where the parties to the communication know or are assumed to know such facts, and a mixed expression of opinion, where the opinion in form or context is apparently based on undisclosed facts (Restatement [Second] of Torts § 566 comment b, pp 171-173 [1977]). Opinions of the pure type are not actionable, while opinions of the mixed type are actionable (Rand v New York Times Co., 75 AD2d 417, 422 ). Further, opinions of the mixed type are not accorded constitutional protection (see, Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380 , cert denied 434 US 969 ). In the instant case, the taped message states, "[Plaintiff] lacks only three things to get ahead, talent, ambition, and initiative.” The message does not state the basis for this opinion, nor can it be assumed that all potential listeners were aware of any factual basis for this opinion. Therefore, taken in the context of the entire message, this is the sort of mixed opinion which is actionable.
Further, the failure of plaintiff to allege special damages is not fatal to her action. A slander cause of action must be supported by an allegation of special damages unless the defamation falls into one of the four narrow categories of slander per se (Matherson v Marchello, 100 AD2d 233, 236 ). Libel, on the other hand, does not require an allegation of special damages if the defamatory statement " 'tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society’ ” (Rinaldi v Holt, Rinehart & Winston, supra, p 379, quoting Sydney v Macfadden Newspaper Pub. Corp., 242 NY 208, 211-212 ). The Second Department has held that a radio broadcast should be treated as libel rather than slander (Matherson v Marchello, supra, p 239). In our view, its rationale is sound and should be followed, and we see no reason to distinguish a taped phone message intended for a large audience from a radio broadcast. In the context of the entire taped message in the instant case, the defamatory expression would tend to expose plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of her in the minds of right-thinking persons. Thus, the allegation of special damages was not necessary.