The opinion
Asch, J. (dissenting).
I dissent and would grant defendant’s cross motion for summary judgment dismissing the complaint.
The remarks of defendant, Robert Von Gutfeld, on the specific matter in issue at the public community board hearing is precisely the type of expression which is protected, at least under the New York State Constitution, and is not actionable. This conclusion is mandated by Immuno AG. v Moor-Jankowski ( 74 NY2d 548 , vacated and remanded — US —, 110 S Ct 3266 , for reconsideration in light of Milkovich v Lorain Journal Co., 497 US —, 110 S Ct 2695 , and upon reconsideration 77 NY2d 235 , adhering to same result).
Defendant, Von Gutfeld, has been a shareholder in the cooperative-condominium apartment building, residing there for 33 years and was president of the building’s board of managers from 1985 to 1988. Since June 1988 he has served on the Board’s building committee.
At the street level of the building one commercial condominium unit is occupied by "Grandma’s Restaurant” which has been owned and operated by the plaintiff since 1987.
In March of 1988 the plaintiff applied for a permit from the City of New York to enable it to have a sidewalk cafe exten *68 sion. Prior approval was never obtained from the Board of Managers and in a letter dated April 28, 1988 the City Department of Consumer Affairs rejected the application stating: "the Board must approve any construction of a sidewalk cafe as the sidewalk is specifically included as a common element of the condominium plan.”
Again without first obtaining the approval of the board, plaintiff’s application was resubmitted to the Department of Consumer Affairs. The application was once again rejected in a letter dated March 15, 1989.
However, before that final rejection occurred, the plaintiff submitted to Consumer Affairs an affidavit of consent from Excelsior Associates, owner of the commercial condominium but never obtaining approval of the board of managers.
The basis of defendant’s statements and his action stemmed from Consumer Affairs’ initial treatment of that "consent” by Excelsior.
On October 3, 1988 Consumer Affairs wrote to all concerned indicating that it would not become the arbitrator as to whether or not the applicant had the right to construct a sidewalk cafe. At that point, Consumer Affairs thought the affidavit from the condominium owner was a "valid consent”. Subsequently, as noted, in March of 1989, it stated that it was unable to continue processing the application because it did not have an affidavit of consent from the condominium board of managers. But, before this clarification, many of the parties assumed that somehow the application would be approved by the city agency even without consent from the board of managers.
A public hearing was scheduled by Community Board No. 9 of Manhattan. Mr. Von Gutfeld, among others, spoke at the hearing. He addressed various matters; that the building did not need "beautification by a restaurant”, problems with offensive smells and parking, his feeling that the building had been "denigrated” by plaintiff’s restaurant and would be "denigrated further” by the proposed sidewalk cafe.
Mr. Von Gutfeld noted for background that plaintiff had not obtained prior approval of the board of managers and that previously the Department of Consumer Affairs had, on that ground, rejected the application. Addressing the apparent sudden reversal of Consumer Affairs’ position, he said that the manner in which that agency handled the matter "smelled of bribery and corruption”.
*69 Thus, most simply, what defendant expressed at the Community Board meeting, which is, in effect, the hallowed New England "town hall” meeting, in modern urban dress, where board disputes can be thrashed out in a full and free debate, were either explicit opinions or in context and under the circumstances clearly his opinion and not stated as a factual matter.
While Immuno AG. v Moor-Jankowski ( 77 NY2d 235 , supra) dealt with a letter to the editor, the comments by Judge Kaye are equally applicable to the circumstances here—a community board meeting—our own modern version of the "town hall” forum.
"Significantly, for many members of the public, a letter to the editor may be the only available opportunity to air concerns about issues affecting them. A citizen troubled by things going wrong 'should be free to "write to the newspaper”: and the newspaper should be free to publish [the] letter. It is often the only way to get things put right.’ * * * The availability of such a forum is important not only because it allows persons or groups with views on a subject of public interest to reach and persuade the broader community but also because it allows the readership to learn about grievances, both from the original writers and from those who respond, that perhaps had previously circulated only as rumor; such a forum can advance an issue beyond invective. Finally, at the least, the public may learn something, for better or worse, about the person or group that wrote such a letter * * *. Thus, in determining how the average person would view McGreal’s letter, we take into account that it is a letter to the editor and that: '[t]he common expectation of a letter to the editor is not that it will serve as a vehicle for the rigorous and comprehensive presentation of factual matter but as one principally for the expression of individual opinion.’ * * *
"We conclude that the body of the letter in issue communicated the accusations of a group * * * and that the writer’s presumptions and predictions as to what 'appeared to be’ or 'might well be’ or 'could well happen’ or 'should be’ would not have been viewed by the average reader of the Journal as conveying actual facts about plaintiff” (Immuno AG. v MoorJankowski, supra, at 253-255).
Likewise, in this case, the defendant’s expression that the events "smelled of’ expressed his presumption as to what "appeared to be” and was made in the context of an open, no *70 holds barred community discussion, in a favored public forum, directly analogous to a "letters to the editor” column in a newspaper journal. Consequently, it is protected under our State constitutional free speech guarantee as opinion.
Murphy, P. J., and Smith, J., concur with Ross, J.; Milonas and Asch, JJ., dissent in an opinion by Asch, J.
Order, Supreme Court, New York County, entered on or about April 30, 1990, affirmed, with costs.
Motion to strike defendant’s reply brief is denied.