Lenz Hardware, Inc. v. Wilson

263 A.D.2d 632, 692 N.Y.S.2d 814, 27 Media L. Rep. (BNA) 2183, 1999 N.Y. App. Div. LEXIS 7824

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1999
• Status: Published

Opinions

Yesawich Jr., J.

Appeal from an order of the Supreme Court (Best, J.), entered May 15, 1998 in Montgomery County, which, inter alia, granted defendant’s motion to dismiss the complaint for failure to state a cause of action.

This action has its origin in an advertisement placed in a pennysaver publication by defendant, who is a member of the limited liability company that operates a hardware store known as St. Johnsville Hardware and Gifts. The advertisement, which provided a comparison of St. Johnsville’s prices with that of a local competitor, plaintiff Lenz Hardware, Inc., also included the following language: “No Coupon Necessary at St. Johnsville Hardware We have friendly, fast service We Speak English, Plumbing, Farming and Dabble in Pig Latin St. Johns-ville Hardware Gifts” (emphasis supplied). Lenz’s vice-president, plaintiff Myong S. Daley, is an American citizen of Korean origin. The thrust of plaintiffs’ complaint is that the phrase “We Speak English” was defamatory inasmuch as it impugned the English language skills of those employed by Lenz, including Daley.

After joinder of issue, defendant moved pursuant to CPLR 3211 (a) (7) to dismiss plaintiffs’ complaint on grounds that it failed to state a cause of action and for nonjoinder of St. Johns-ville as a necessary party. Supreme Court dismissed the complaint, prompting this appeal by plaintiffs.

At issue is whether Supreme Court properly concluded that the advertisement’s language was not defamatory. A court making a determination as to whether a statement is defamatory must not isolate the allegedly defamatory words, but must “consider them in context, and give the language a natural reading rather than strain to read it as mildly as possible at one extreme, or to find,defamatory innuendo at the other” (Weiner v Doubleday & Co., 74 NY2d 586, 593, cert denied 495 US 930; see, James v Gannett Co., 40 NY 2d 415, 419-420). “Where a plaintiff alleges that statements are false and defamatory, the legal question for the court on a motion to dismiss is whether the contested statements are reasonably susceptible of a defamatory connotation” (Armstrong v Simon & Schuster, 85 NY2d 373, 380; see, Weiner v Doubleday & Co., supra).

Applying these principles to the matter at hand, we agree with Supreme Court’s determination. Viewed in the context of the advertisement, the phrase “We Speak English” is not, in our judgment, susceptible of a defamatory connotation for although Lenz is alluded to by name in the advertisement, it is only with regard to a comparison of its prices with those of St. Johnsville. Furthermore, this phrase appears at the bottom of the advertisement in a paragraph which is separate and distinct from any reference to Lenz ánd thus it could not reasonably be concluded that it was intended to apply to it. As for Daley’s claim that this language disparages her English language skills as a Korean-American to the detriment of her business, it suffices to note that she was not named in the advertisement (see, Jackson v Quinn, 187 AD2d 1040, 1041, lv denied 81 NY2d 706) nor is it likely that one could infer her identity from the contents of the publication itself (compare, Cuthbert v National Org. for Women, 207 AD2d 624, 626).

Mikoll, J. P. and Mercare, J., concur.