Khan v. Newsweek, Inc.

160 A.D.2d 425, 17 Media L. Rep. (BNA) 1940, 554 N.Y.S.2d 119, 1990 N.Y. App. Div. LEXIS 4303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1990
• Status: Published

Opinions

—Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered July 21, 1988, which denied defendant’s motion to dismiss the amended complaint for failure to state a cause of action (CPLR 3211 [a] [7]) or, alternatively, to dismiss the action as barred by the First and Fourteenth Amendments of the US Constitution and article I, § 8 of the NY Constitution, is affirmed, without costs.

This is an action for libel brought by a Pakistani businessman and a corporation of which he is the principal shareholder, Wardug Tyre Company, Ltd., against Newsweek, Inc., based on an article appearing in the October 10, 1983 international edition of Newsweek magazine. The cover of this issue featured a headline reading, "The Secret Warriors” with a subtitle, "The CIA Is Back in Business”. The inside article is entitled "The Afghan Connection”, and the offending material reads as follows: "Recently, a Pakistani businessman who had long lived in the United States started building a tire factory in Peshawar. But Pakistani police discovered that some of the crates of 'equipment’ delivered to the factory contained arms. The businessman was arrested, released and has faded from view. Many Pakistani industrialists do not think he would have embarked on such a major investment as a free-lance arms merchant: the CIA, they point out, was probably a silent partner.”

That it is the individual plaintiff who is referred to in this paragraph is not disputed by defendant and, indeed, there is apparently no question that plaintiff Khan would be readily identifiable in Pakistan as the Pakistani businessman referred to.

The dissent concludes (at 428) that the language in question was "obviously not meant to be abusive of the plaintiff” and that "[t]o be a 'free-lance arms merchant’ is not necessarily to be in the export trade or smuggling.” At issue in this appeal, however, is the very narrow determination of whether the complaint is insufficient as a matter of law. On this record, we cannot reach such a conclusion.

A motion to dismiss for failure to state a cause of action assumes the truth of the material allegations and everything reasonably to be implied therefrom. (See, Foley v D’Agostino, 21 AD2d 60, 65.) In determining such a motion, it is not the function of the court to evaluate the merits of the case (Carbillano v Ross, 108 AD2d 776, 777) or express an opinion as to plaintiffs ability to ultimately establish the truth of the averments. (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509.) Rather, the plaintiff must be "given the benefit of every possible favorable inference” (Rovello v Orofino Realty Co., 40 NY2d 633, 634) and the motion to dismiss will fail if, "from [the pleading’s] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law”. (Guggenheimer v Ginzburg, 43 NY2d 268, 275.)

Upon applying these principles to the facts before us, we conclude that the statements at issue are "reasonably susceptible of a defamatory connotation” (James v Gannett Co., 40 NY2d 415, 419), particularly when considered, as they must be, in context, and when the language is given the requisite "natural reading”, i.e., not read "as mildly as possible at one extreme, or to find defamatory innuendo at the other”. (Weiner v Doubleday & Co., 74 NY2d 586, 592.) Concur—Asch, Kassal, Ellerin and Wallach, JJ.