Knutt v. Metro International, S.A.
938 N.Y.S.2d 134
N.Y. App. Div.
2012
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JAYDEN KNUTT et al., Appellants, v METRO INTERNATIONAL, S.A., Respondent.

Appellate Division of the Supreme Court of New York, Second Department

January 31, 2012

938 NYS2d 134

The verified complaint alleged that, in April 2009, a photographer for the defendant, Metro International, S.A. (hereinafter Metro), photographed the infant plaintiff, a 10-year-old African-American child, as he paused to look at a crime scene cordoned off with yellow police tape on a Brooklyn street. On December 4, 2009, without the consent or knowledge of the infant plaintiff or his parents, Metro printed the photograph in the publication Metro New York under the headline “Call to Get Tougher on Gang Activities,” in an article about recent gang shootings in the Bronx. The infant plaintiff and his parents commenced this action against Metro alleging three causes of action, including a cause of action to recover damages for defamation. Metro moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint, and the Supreme Court granted the motion in its entirety. The plaintiffs appeal, as limited by their brief, from so much of the order as granted that branch of the motion which was to dismiss the cause of action alleging defamation. We reverse the order insofar as appealed from.

On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026), “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (; see ; ). “Bare legal conclusions asserted in a complaint, however, are not presumed to be true” (). “Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus” ().

To recover damages for defamation, a plaintiff must prove the defendant‘s publication to a third party of a false statement about the plaintiff, without privilege or authorization (see ). A defamatory statement is one which “‘tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion’ of him in the minds of a substantial number of the community” (, quoting ). Imputing a serious crime to the plaintiff constitutes defamation per se (see ; ). It is for the court to determine in the first instance whether the particular publication, considered as a whole, is susceptible of a defamatory meaning (see ; ), and whether the publication is “of and concerning” the plaintiff ( [internal quotation marks omitted]; see ). “If the contested statements are reasonably susceptible of a defamatory connotation, then ‘it becomes the jury‘s function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader‘” (, quoting ; see , cert denied ; ).

Here, the subject news article, considered as a whole, is reasonably susceptible of a defamatory connotation concerning the infant plaintiff and, thus, it is a question for the jury whether the ordinary and average reader would understand the meaning as such (see ). Therefore, the Supreme Court correctly determined that the plaintiffs have sufficiently pleaded the element of a defamatory statement (see ; ).

Where, as here, a private individual is allegedly defamed by a publication involving a matter of public interest, the plaintiffs must plead and prove that “the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” (; see ; ). At the pleading stage and prior to discovery, the plaintiffs have no knowledge of, and cannot possibly plead, any factual allegations concerning Metro‘s methods for gathering information, researching, writing and editing the subject article. Affording the complaint a liberal construction, accepting all facts concerning Metro‘s use of the infant plaintiff‘s photograph in the subject article as true, and according the plaintiffs the benefit of every possible favorable inference (see ), the plaintiffs adequately alleged the element of gross irresponsibility. Accordingly, the Supreme Court should have denied that branch of Metro‘s motion which was to dismiss the defamation cause of action (see ; cf. ). Angiolillo, J.P., Florio, Chambers and Sgroi, JJ., concur.