Lead Opinion
OPINION OF THE COURT
The complaint herein alleges one cause of action against all the defendants for conspiracy to defame plaintiff by publication of a false statement, i.e., by libel, in retaliation for plaintiff’s campaign to persuade people not to buy fur coats
Defendants moved to dismiss the complaint for failure to state a cause of action and for summary judgment based on an affidavit by Irvin Hecht, an individual defendant and officer of the corporate defendant Associated Fur Manfacturers, Inc. Hecht asserts that the alleged defamatory statement was not uttered or published by any of the defendants; that plaintiff has no proof that defendants orally made the alleged defamatory statement; that the statement is not defamatory per se; that the statement is true or, in the alternative, is protected by qualified privilege. No assertions are made by defendants on their motion respecting the plaintiff’s allegation as to the alleged conspiracy between the defendants. Plaintiff opposed the motion which was granted on the ground that (1) the statement is not libelous per se and, therefore, special damages must be pleaded, and (2) plaintiff has failed to demonstrate that the offending statement was made by any of the defendants.
It is well established that a defamatory utterance which tends to disparage a person in the way of his office, profession or trade, is defamatory per se and actionable without allegation or proof of special damage (Nichols v Item Publishers,
As to defendants’ request for summary judgment, it is well recognized that "issue-finding, rather that issue-determination, is the key to the procedure” (Sillman v Twentieth Century Fox Film Corp.,
Patently, plaintiff is embraced within the definition of a "public figure”. Nevertheless, the complaint charges defendants with actual knowledge of the falsity of the complained of statement, i.e., with actual malice. Further, as to whether defendants acted with disregard for the truth of the complained of statement, it is noted that the report of the Canadian government which defendants point to as the genesis of the defamatory statement nowhere asserts that plaintiff herein staged the live skinning of baby seals. Accordingly, it must be concluded on this record that sufficient has been demonstrated whether by way of disclosed proof or the failure to reveal proof, to raise an issue as to whether defendants acted with knowledge of the statement’s falsity or with disregard for its truth. Thus the complaint may not be dismissed on the ground of "qualified privilege.”
Trial Term in improperly dismissing the complaint for failure to state a cause of action, observed respecting the merits that "the plaintiff has failed to prove that the offending statement was made by any of the defendants”, which observation, if true, would justify the granting of summary judgment to defendants. However, scrutiny of the record impels the conclusion that plaintiff has sufficiently demonstrated a viable issue of fact on this point. The article containing the alleged defamatory statement was written by one Phoebe Ailenroc, who cannot apparently be located. In the article it is reported that "(t)o evaluate [the furriers’] position one should know something of the nature of their industry, best accomplished by a visit to the * * * fur market * * * Three wise men of the industry worth consulting are George Stofsky, manager of the Furriers’ Joint Council, Robert Ginsberg, president of the Fur Conservation Institute of America, and Irvine Hecht, executive vice president of the Association of Fur Manufacturers. Jointly the three represent about a century of experience in the fur trade. They are sitting together in Mr. Ginsberg’s office * * * Listening to the three of them, totally in agreement, one gets the feeling one is talking instead to one man. 'His’ testimonial goes like this: (there now follow numerous statements in quotation marks attributed to
On examinations before trial of defendants Stofsky and Hecht, it was admitted that the interview described in the article occurred with all the individual defendants present. At these examinations, all the statements attributed to the individual defendants by the reporter were not denied, with one exception—the alleged defamatory statement. Some of the statements were specifically recalled and admittedly made by one or the other of the three individual defendants. Others were recalled, but could not be ascribed to a particular defendant. Still others were not recalled, but were not denied, it being admitted that they could well have been uttered. However, on one point there was complete recollection by the individual defendants at the examinations before trial—the defamatory statement was not made. Under these circumstances a factual issue is clearly raised as to whether the defendants interviewed orally made the alleged defamatory statement. As defendants have admitted that the interview did occur and have not specifically denied the making of the statements attributed to them in that interview with one notable exception, the nature of that exception in the context of the pleadings and the failure of defendants to address the conspiracy issue (see Youmans v Smith,
Defendants seek solace in the fact that the oral statements uttered are the basis of a cause of action for slander, not libel, and that plaintiff’s sole cause of action sounds in libel. It is noted that not only from the pleadings, but from defendants’ papers on their motion for summary judgment, an awareness of the slander aspect of this litigation was present. Even assuming defendants were entitled to summary judgment on the libel claim, the special circumstances delineated in this record would mandate that leave be afforded plaintiff to amend the complaint (see Babtkis Assoc, v Tarazi Realty
Accordingly, the judgment of the Supreme Court, New York County (Rosenberg, J.), entered January 8, 1976, granting defendants summary judgment dismissing the complaint, should be reversed, on the law, without costs and disbursements, and the motion should be denied.
Dissenting Opinion
Although concurring with my colleagues’ finding that the statement complained of is libelous per se, I dissent and would affirm. To prove its cause of action the plaintiff must prove that one of the individual defendants made the offensive statement at their joint interview. To support their motion for summary judgment, the defendants, while conceding that they made all of the other statements attributed to them at the interview, have denied under oath that any of them made the offensive statement. To meet this proof the plaintiff is able to express only the possibility that, because the defendants admitted all the other statements, a jury might find their denial of the offensive statement incredible. This is insufficient to create an issue of fact to defeat summary judgment (Downey v General Foods Corp.,
Murphy, P. J., and Silverman, J., concur with Lupiano, J.; Lynch, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on January 8, 1976, reversed on the law, without costs and without disbursements, vacated, and the motion denied.