| Knutt v Metro Intl., S.A. |
| 2012 NY Slip Op 00754 [91 AD3d 915] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Jayden Knutt et al., Appellants, v Metro International, S.A.,Respondent. |
—[*1] John J. Lynch, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for defamation, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), datedMarch 1, 2011, as granted that branch of the defendant's motion pursuant to CPLR 3211 (a) (7)which was to dismiss the cause of action alleging defamation.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion pursuant to CPLR 3211 (a) (7) which was to dismiss the causeof action alleging defamation is denied.
The verified complaint alleged that, in April 2009, a photographer for the defendant, MetroInternational, S.A. (hereinafter Metro), photographed the infant plaintiff, a 10-year-oldAfrican-American child, as he paused to look at a crime scene cordoned off with yellow policetape on a Brooklyn street. On December 4, 2009, without the consent or knowledge of the infantplaintiff or his parents, Metro printed the photograph in the publication Metro New York underthe headline "Call to Get Tougher on Gang Activities," in an article about recent gang shootingsin the Bronx. The infant plaintiff and his parents commenced this action against Metro allegingthree causes of action, including a cause of action to recover damages for defamation. Metromoved pursuant to CPLR 3211 (a) (7) to dismiss the complaint, and the Supreme Court grantedthe motion in its entirety. The plaintiffs appeal, as limited by their brief, from so much of theorder as granted that branch of the motion which was to dismiss the cause of action allegingdefamation. 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 acause of action, the court must afford the complaint a liberal construction (see CPLR3026), "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Nonnon v City of New York, 9NY3d 825, 827 [2007]; Rietschel vMaimonides Med. Ctr., 83 AD3d 810 [2011]). "Bare legal conclusions asserted in acomplaint, however, are not presumed to be true" (Baron v Galasso, 83 AD3d 626, 628 [2011]). "Whether a plaintiff[*2]can ultimately establish [his or her] allegations is not part ofthe calculus" (EBC I, Inc. v Goldman,Sachs & Co., 5 NY3d 11, 19 [2005]).
To recover damages for defamation, a plaintiff must prove the defendant's publication to athird party of a false statement about the plaintiff, without privilege or authorization (see Epifani v Johnson, 65 AD3d224, 233 [2009]). 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 asubstantial number of the community" ' (Golub v Enquirer/Star Group, 89 NY2d 1074,1076 [1997], quoting Mencher v Chesley, 297 NY 94, 100 [1947]). Imputing a seriouscrime to the plaintiff constitutes defamation per se (see Geraci v Probst, 15 NY3d 336, 344 [2010]; Liberman vGelstein, 80 NY2d 429, 435 [1992]). It is for the court to determine in the first instancewhether the particular publication, considered as a whole, is susceptible of a defamatory meaning(see Aronson v Wiersma, 65 NY2d 592, 593 [1985]; Tracy v Newsday, Inc., 5NY2d 134, 136 [1959]), and whether the publication is "of and concerning" the plaintiff(Springer v Viking Press, 60 NY2d 916, 917 [1983] [internal quotation marksomitted]; see Carlucci v Poughkeepsie Newspapers, 57 NY2d 883, 885 [1982]). "If thecontested statements are reasonably susceptible of a defamatory connotation, then 'it becomes thejury's function to say whether that was the sense in which the words were likely to be understoodby the ordinary and average reader' " (James v Gannett Co., 40 NY2d 415, 419 [1976],quoting Mencher v Chesley, 297 NY at 100; see Silsdorf v Levine, 59 NY2d 8,12-13 [1983], cert denied 464 US 831 [1983]; Rosen v Piluso, 235 AD2d 412[1997]).
Here, the subject news article, considered as a whole, is reasonably susceptible of adefamatory connotation concerning the infant plaintiff and, thus, it is a question for the jurywhether the ordinary and average reader would understand the meaning as such (see James vGannett Co., 40 NY2d at 419). Therefore, the Supreme Court correctly determined that theplaintiffs have sufficiently pleaded the element of a defamatory statement (see Porcari v Gannett Satellite Info.Network, Inc., 50 AD3d 993 [2008]; Rosen v Piluso, 235 AD2d 412 [1997]).
Where, as here, a private individual is allegedly defamed by a publication involving a matterof public interest, the plaintiffs must plead and prove that "the publisher acted in a grosslyirresponsible manner without due consideration for the standards of information gathering anddissemination ordinarily followed by responsible parties" (Chapadeau v UticaObserver-Dispatch, 38 NY2d 196, 199 [1975]; see Porcari v Gannett Satellite Info.Network, Inc., 50 AD3d at 994; McCormack v County of Westchester, 286 AD2d24, 30 [2001]). 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 gatheringinformation, researching, writing and editing the subject article. Affording the complaint a liberalconstruction, accepting all facts concerning Metro's use of the infant plaintiff's photograph in thesubject article as true, and according the plaintiffs the benefit of every possible favorableinference (see Leon v Martinez, 84 NY2d at 87-88), the plaintiffs adequately alleged theelement of gross irresponsibility. Accordingly, the Supreme Court should have denied thatbranch of Metro's motion which was to dismiss the defamation cause of action (see Porcari vGannett Satellite Info. Network, Inc., 50 AD3d at 993-994; cf. McCormack v County ofWestchester, 286 AD2d at 30-31). Angiolillo, J.P., Florio, Chambers and Sgroi, JJ., concur.