Zagat Survey, LLC, publishes the famous Zagat series of dining, travel, and leisure guides for different cities and locations. The Zagat restaurant guides lists and ranks each reviewed restaurant from 0 to 30 for categories such as food, décor, and service. These ratings are calculated from surveys of customers of the restaurants, and the Zagat guide often quotes anonymous consumer comments.
Lucky Cheng’s is a restaurant owned by Themed Restaurants, Inc., that is located in Manhattan, New York. Lucky Cheng’s is a theme restaurant with a drag queen cabaret where female impersonators are both waiters and performers, and customer participation contributes to the entertainment. The Zagat Survey of New York City Restaurants rated the food at Lucky Cheng’s as 9 and rated the décor and service as 15. The Zagat guide then stated,
God knows “you don’t go for the food” at this East Village Asian Eclectic— rather you go to “gawk” at the “ hilarious” “ cross dressing” staff who “ tell dirty jokes”, perform “ impromptu floor shows” and offer “ lap dances for dessert”; obviously, it “ can be exhausting”, and weary wellwishers suggest they “ freshen up the menu— and their makeup.”
Themed Restaurants sued Zagat for disparagement. Zagat defended, arguing that the ratings and comments about Lucky Cheng’s restaurant that appeared in the Zagat guide were opinions and not statements of fact and were, therefore, not actionable as disparagement. Were the statements made in Zagat’s restaurant guide statements of fact or statements of opinion? Is Zagat liable for disparagement? Themed Restaurants, Inc., Doing Business as Lucky Cheng’s v. Zagat Survey, LLC, 801 N. Y. S. 2d 38, 2005 N. Y. App. Div. Lexis 9275 (Supreme Court of New York, Appellate Division, 2005)