ALTAMONT — The judge presiding over the defamation suit filed by Jackie Silvestri-Edwards, former owner of Farmhouse Tap + Tavern and founder of the 518 Foodies site, on March 20 denied a defendants’ motion to dismiss the case, an indication that the court found Silvestri-Edwards’s initial claims to have a sufficient legal basis.

In mid-February, defendants Frank Cappello and Alyssa Cappello, owners of a Latham restaurant, filed a motion to dismiss, arguing that, even if all Silvestri-Edwards’ allegations were accepted as true, they did not constitute a recognizable legal claim that would entitle her to relief.

Silvestri-Edwards is seeking $450,000 in damages. 

The Times Union first reported on the decision.

Silvestri-Edwards alleged in her Jan. 21 complaint that Frank Cappello made multiple false and defamatory statements about her on social media, causing significant harm to her reputation and business.

Silvestri-Edwards’s defamation claim is based on specific statements allegedly made and published by the Cappellos, including statements:

— Attacking Silvestri-Edwards professional success and financial stability, including assertions that she had “failed in the business,” “gone out of business,” was “late on her rent six months,” and “filed bankruptcy”; 

— Questioning  Silvestri-Edwards’s competence and success: “Who are you taking advice from? Are you taking advice from someone that does nothing, has nothing, doesn’t own their own house”;

— Expressing an intent to harm Silvestri-Edwards’s business: “I will spend thousands to shut her down and today I paid a private investigator and got a lot of information about her and her failed business... i will mail a copy to every restaurant in the 518…”: and 

— Detailing Silvestri-Edwards’s past business dealings and negative personal characterizations, and reiterating claims of business failures and financial instability.

Under New York State Law, to successfully claim defamation, a plaintiff prove several elements, including:

— The exact words referred to in the complaint;

— The time, place, and manner of the allegedly false statements;

— That the statements were false;

— There was publication to a third party; and

— That the statements constituted defamation per se or caused special damages. Defamation per se is a type of defamatory statement so inherently damaging that the law presumes harm to the plaintiff's reputation, meaning the plaintiff doesn’t need to prove specific damages to win her case. 

Justice Peter Lynch, in analyzing the defamation claim, paid particular attention to the distinction between statements of fact and opinion. 

Only assertions of fact are capable of being proven false and can thus form the basis of a defamation claim. Expressions of pure opinion, however, are generally protected under the First Amendment and are not actionable as defamation.

Lynch assessed whether the words used by the defendant had a clear and unambiguous meaning that an average person could understand, and statements alleging specific actions or conditions, such as “Plaintiff had not paid rent for 6 months, that he paid Plaintiff in cash on a regular basis, that she ate for free at the restaurant, and that she had filed bankruptcy. Such statements are specific, readily understood, and capable of being proven true or false.”

Lynch’s denial to dismiss the defamation claim indicates the Capellos’ statements could be interpreted as assertions of fact, or mixed opinions, which is an opinion that implies it is based upon fact. 

For the defamation claim, Silvestri-Edwards is seeking $200,000 in damages as well as an injunction to prevent further defamatory statements. 

Silvestri-Edwards also claimed Frank Cappello made false statements — referred to as product disparagement in the complaint — about 518 Foodies’ marketing services, labeling them a scam, which she claims caused the business to lose revenue. Her request is $200,000 in damages and an injunction similar to the first. 

Silvestri-Edwards claimed Cappello, in a series of Facebook live videos and posts, made several false and disparaging claims, like 518 Foodies engaged in “rip off” practices and that its services were a “scam.” Silvestri-Edwards claimed these statements denigrated her core product and main source of 518 Foodies’ revenue, leading to a significant loss — initially, a 33 percent drop that escalated to 90 percent. 

The Capellos argued in a February filing that Frank Cappello’s statements constituted non-actionable expressions of opinion — he was merely voicing his dissatisfaction with the services 518 Foodies provided — not assertions of fact. 

The Capellos also argued Silvestri-Edwards had failed to make a case to receive special damages because, in such instances, a plaintiff must identify specific individuals or entities who were no longer customers due to the disparaging statements. Silvestri-Edwards’s claim of losing nearly all 518 Foodies business revenue lacked the requisite specificity needed in a special damages claim because her claim was supported by only one non-specific email from a terminating customer.

But Lynch determined the product disparagement claim had merit because Frank Capello’s published Facebook statements — to prove disparagement, a plaintiff must prove publication of the defamatory statements to a third party — negatively reflected upon Silvestri-Edwards and 518 Foodies.

Silvestri-Edwards’s third claim was for civil assault, the basis of which is a recorded phone call from Alyssa Cappell that contained explicit threats of physical violence, in addition to Facebook posts by Frank Cappello.

The civil assault claim stems from an anonymous negative review of Taste of Italy, the Capellos restaurant, posted on the 518 Foodies Facebook page in November. In that post, the 518 Foodies group member wrote, “This is how tase [sic] of Italy conducts business when a respectful honest review is said to them. Not only did I get this response but prior to this they posted screenshot of where I work on the post!”

The group member wrote the Capellos “clearly ... want me to be scared of them ... little boy complex needs to threaten a women [sic] to feel like a man! They also said my pictures were fake and that they would never serve me this but guess what it’s not! Like why would I go out of my way to create a fake cannoli??”

Alyssa Capello quickly called Silvestri-Edwards and threatened to harm her if she did not remove the post: “Jackie, I swear to God you’re going to be fu***** sorry, I’m going to fu***** rip your fucking hair out. You need to delete it now. I swear to go on my kids I’m going to fu** you up Jackie. Delete it now. You don’t want this. Ok, because I do give a fu** ok, and I’ll take a fu***** assault charge for you ok. Because you think your fu***** cute, you think your fu***** God, you wanna control shit, you’re fu***** weird. Delete it now!”

The Capellos contended that Silvestri-Edwards’s claim was predicated solely on verbal threats made during a phone call, and lacked any evidence of physical conduct by Ms. Cappello that would have placed Silvestri-Edwards in imminent physical harm.

But the specific and threatening language carried a lot of weight with Judge Lynch. For example, Alyssa Cappello’s statement acknowledging her willingness to commit a crime: “I'll take a fu***** assault charge for you ok," was the type of direct and explicit threat of physical violence that could have reasonably been interpreted as imminent harm, he said. 

For causing this emotional distress, Silvestri-Edwards is seeking $50,000 in punitive damages.