91 A.D.2d 520 | N.Y. App. Div. | 1982
— Judgment, Supreme Court, New York County (Wright, J.), entered January 29,1982, unanimously reversed, on the law, and the complaint dismissed, with costs (one bill). This defamation case should not have gone to the jury, the “statement” made by defendant in his obviously allegorical and symbolic painting being one of critical opinion only at most and constituting no accusation of criminal or antisocial conduct. Further, the fair meaning of the picture does not exceed appropriate comment, nor was there any showing of malice whatever. In addition, plaintiffs were not damaged in any way by defendant’s expression. It is to be noted that the Trial Justice himself had grave doubt, as demonstrated by his expressions on a motion to set aside the jury’s verdict for plaintiffs, that a case had been made out. The difficulty was that, though appropriate respect was accorded the jury’s function in deciding issues of fact, the court should have decided the question of law of whether plaintiffs had, at a minimum, presented sufficient evidence to raise a question of fact to go to a jury. (Steinman v Di Roberts, 23 AD2d 693.) The instrument by which plaintiffs-respondents claim to have been libeled is a painting called “The Mugging of the Muse,” exhibited [for which read “published”] before the Alliance of Figurative Artists prior to the commencement of this action. The plaintiffs and defendant, all three of them artists known in the world of painting, had been friends for some time. They had come to a parting of the ways as the culmination of a dispute over refinements of their respective views of aspects of their art. Against the background of this prologue, defendant painted the offending picture, and presented it at one or more showings, and also permitted its magazine publication, to — it is claimed — the injury of plaintiffs. The picture shows an apparent attempt at assassination on a city street by three males, armed with knives, upon a barefoot woman, scantily draped in a red cloth, the appearance of which suggests that it might be a bath