GJONLEKAJ v. SOT

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Supreme Court, Appellate Division, Second Department, New York.

Gjek GJONLEKAJ, et al., appellants, v. Bota SOT, et al., respondents.

Decided: September 15, 2003

ANITA R. FLORIO, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, and BARRY A. COZIER, JJ. Clifford L. Davis, White Plains, N.Y., for appellants. Daniel S. Torchio, New York, N.Y., for respondent Leke Gojcaj.

In an action to recover damages for libel, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered April 16, 2002, which granted the motion of the defendant Leke Gojcaj, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action, and denied their cross motion for summary judgment on the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion and substituting a provision therefor denying the motion;  as so modified, the order is affirmed, without costs or disbursements, and the complaint is reinstated insofar as asserted against the defendant Leke Gojcaj.

The plaintiff Gjek Gjonlekaj (hereinafter Gjonlekaj) and his publishing company, Gjonlekaj Publishing Company, commenced this action to recover damages for allegedly libelous statements made in an article written by the defendant Leke Gojcaj (hereinafter Gojcaj) and published in the defendants' Albanian language newspaper, Bota Sot. Gojcaj wrote the subject article in response to certain comments that Gjonlekaj made which were published in another Albanian newspaper named The Illyria.   The IIlyria article indicated that Gjonlekaj claimed sole credit for conceiving and effectuating the idea for publishing an Albanian translation of a book written by Pope John Paul II (hereinafter the book).

However, Gojcaj claimed in the subject article that it was his initial idea to publish an Albanian translation of the book, and that he had approached Gjonlekaj with such idea.   The article characterized Gjonlekaj, inter alia, as a “leftist bookseller,” who was “actually dealing with Enver Hoxha's books and communist propaganda in Albania” and who makes “propaganda for leftists as well as persons of high moral character such as His Holiness.”   Enver Hoxha was the communist dictator of Albania from the 1940's until his death in 1985.

The article also stated, inter alia, that “many of the newly arrived Albanians don't know his background, but to many of us who know [Gjonlekaj] very well he is a representative of the Marxist ideology.   The same ideology that destroyed the Albanian spirit during a half century of red terror.”   In addition, the article questioned Gjonlekaj's four-year delay in publishing the book by asking:  “[w]as this four year delay out of respect for the Pope, or out of his greed for money and his desire to cheat his compatriots who were constantly ready to help him out?”   Further, the article disputed Gjonlekaj's claims of being a former reporter at the Voice of America and maintained that he was only an interpreter there.

The plaintiffs alleged that the article was “false, malicious, defamatory and libelous per se,” and quoted from certain portions of the article, which was annexed to the complaint.   Gojcaj moved, in effect, pursuant to CPLR 3211(a)(7), to dismiss the complaint insofar as asserted against him for failure to state a cause of action to recover damages for libel per se.   The plaintiffs cross-moved for summary judgment on the ground that the complaint set forth a cause of action for libel per se.   The Supreme Court granted Gojcaj's motion and denied the plaintiffs' cross motion.

 It is well settled that on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true and according the plaintiff the benefit of every possible inference (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511).

 Whether particular words are reasonably susceptible of a defamatory meaning is to be resolved by the court in the first instance (see Golub v. Enquirer/Star Group, 89 N.Y.2d 1074, 659 N.Y.S.2d 836, 681 N.E.2d 1282;  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;  Steinhilber v. Alphonse, 68 N.Y.2d 283, 290, 508 N.Y.S.2d 901, 501 N.E.2d 550;  Miness v. Alter, 262 A.D.2d 374, 691 N.Y.S.2d 171).   For a specialized audience, the statement's defamatory meaning is to be judged by the average and ordinary reader “acquainted with the parties and the subject-matter” (November v. Time Inc., 13 N.Y.2d 175, 179, 244 N.Y.S.2d 309, 194 N.E.2d 126;  see Cassidy v. Gannett Co., 173 Misc. 634, 640, 18 N.Y.S.2d 729;  see also Celle v. Filipino Reporter Enters., 209 F.3d 163, 177).   The court must look at the content of the whole communication, its tone and apparent purpose, to determine whether a reasonable person would view it as conveying any facts about the plaintiff (see Brian v. Richardson, 87 N.Y.2d 46, 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126;  Gross v. New York Times Co., 82 N.Y.2d 146, 152-153, 603 N.Y.S.2d 813, 623 N.E.2d 1163;  600 W. 115th St. Corp. v. Von Gutfeld, supra at 145, 589 N.Y.S.2d 825, 603 N.E.2d 930;  Miness v. Alter, supra).

 A defamatory statement is libelous per se, and a plaintiff need not plead or prove special damages, if the statement “tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society” (Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456;  see Sydney v. MacFadden Newspaper Pub. Corp., 242 N.Y. 208, 211-212, 151 N.E. 209).   In addition, a defamatory statement is libelous per se if it imputes fraud, dishonesty, misconduct, or unfitness in conducting one's profession (see Gatz v. Otis Ford, Inc., 262 A.D.2d 280, 691 N.Y.S.2d 113;  Wasserman v. Haller, 216 A.D.2d 289, 627 N.Y.S.2d 456).

 The issue of distinguishing between actionable fact and non-actionable opinion is a question of law for the court (see Millus v. Newsday, Inc., 89 N.Y.2d 840, 842, 652 N.Y.S.2d 726, 675 N.E.2d 461, cert. denied 520 U.S. 1144, 117 S.Ct. 1313, 137 L.Ed.2d 476, Steinhilber v. Alphonse, supra).

Contrary to the plaintiffs' contention, the Supreme Court properly denied their cross motion for summary judgment since they failed to establish their entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

 However, the Supreme Court erred in granting Gojcaj's motion to dismiss the complaint insofar as asserted against him for failure to state a cause of action.   While certain challenged statements in the complaint appear to be non-actionable opinion and rhetorical hyperbole (see Brian v Richardson, supra;  Gross v New York Times Co., supra;  600 W. 115th St. Corp. v Von Gutfeld, supra;  Steinhilber v Alphonse, supra), the plaintiffs sufficiently set forth certain statements of mixed fact and opinion, which are actionable (see Steinhilber v. Alphonse, supra at 289, 508 N.Y.S.2d 901, 501 N.E.2d 550).   In particular, statements such as Gjonlekaj was “actually dealing with Enver Hoxha's books and communist propaganda in Albania” that “many of the newly arrived Albanians don't know his background, but to many of us who know [plaintiff] very well he is a representative of the Marxist ideology” and that “[t]he same ideology that destroyed the Albanian spirit during a half century of red terror,” may subject the plaintiffs to public humiliation in the minds of the intended audience.   Such statements imply that Gojcaj had knowledge of certain facts not known to his audience which support his opinion regarding the plaintiffs (see Steinhilber v. Alphonse, supra at 289, 508 N.Y.S.2d 901, 501 N.E.2d 550), particularly where the target audience of the subject article are persons of Albanian descent, who presumably have knowledge about the history of Albania in the past century (see Hinsdale v. Orange County Pub., 17 N.Y.2d 284, 289-291, 270 N.Y.S.2d 592, 217 N.E.2d 650).

Since on Gojcaj's motion to dismiss the court was limited to the issue of whether the complaint stated a cause of action, the Supreme Court erred in granting the motion.   Accordingly, we reinstate the complaint insofar as asserted against that defendant.

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