ROSEN v. PILUSO (1997)

In an action to recover damages for defamation, the defendant, appeals from an order of the Supreme Court, Kings County (Douglass, J.), dated November 28, 1995, which, inter alia, granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The plaintiff, Norman J. Rosen, commenced this action to recover damages for an allegedly libelous statement made by the defendant, Anna Marie Piluso, in a letter to the editor which was published in The Brooklyn Graphic on June 29, 1992.

 We agree with the conclusion of the Supreme Court that the plaintiff was not a public figure with respect to the published statement (see, James v. Gannett Co., 40 N.Y.2d 415, 421, 423, 386 N.Y.S.2d 871, 353 N.E.2d 834).  However, the question of whether the complained of language is defamatory is for the jury.   While the question of whether the particular words are “reasonably susceptible of a defamatory connotation” is a legal question to be resolved by the court in the first instance (Weiner v. Doubleday & Co., 74 N.Y.2d 586, 592, 550 N.Y.S.2d 251, 549 N.E.2d 453, cert. denied 495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 498;  see also, Aronson v. Wiersma, 65 N.Y.2d 592, 593-594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138;  Goldberg v. Coldwell Banker, 159 A.D.2d 684, 553 N.Y.S.2d 432), here the language is susceptible to more than one meaning and, thus, it is for the jury to determine the sense in which the words were likely to be understood by the ordinary and average reader (see, Mencher v. Chesley, 297 N.Y. 94, 75 N.E.2d 257;  Arrigoni v. Velella, 110 A.D.2d 601, 488 N.Y.S.2d 184).

 Contrary to the assertions of the defendant, there was no qualified privilege attached to her communication.   Even assuming an interest, or a legal, moral, or social duty to speak on her part, the communication in the form of a letter to the editor was disseminated to persons other than those with a corresponding interest or duty in the subject of the communication (see, Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 259, 633 N.Y.S.2d 106;  Garson v. Hendlin, 141 A.D.2d 55, 60, 532 N.Y.S.2d 776).

 Nor does the privilege of fair comment and criticism apply to language which can reasonably be interpreted only as stating an objective fact (see, Gross v. New York Times Co., 82 N.Y.2d 146, 150, 603 N.Y.S.2d 813, 623 N.E.2d 1163 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 589 N.Y.S.2d 825, 603 N.E.2d 930, cert. denied 508 U.S. 910, 113 S.Ct. 2341, 124 L.Ed.2d 252;  Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906, 567 N.E.2d 1270, cert. denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713).

MEMORANDUM BY THE COURT.