Opinion
July 12, 1989
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Doerr, J.P., Denman, Boomer, Green and Pine, JJ.
Order unanimously reversed on the law with costs, defendant's motion denied and complaint reinstated. Memorandum: The court erred in granting defendant's motion to dismiss plaintiffs' complaint for libel. The sole issue is whether the words complained of are susceptible of a defamatory interpretation. The words were contained on a sign prominently displayed behind the video rental counter at defendant's store in Buffalo for several months, despite plaintiffs' request that the sign be removed or placed in a less prominent location. The sign stated:
"DO NOT RENT TAPES TO #S 492, 493, 494, 495 — CAPPELLINO — MEMBERSHIP IS VOIDED — REVOKE THE CARDS PLEASE."
The numbers refer to plaintiffs' membership cards, which had been surrendered when plaintiffs voluntarily resigned from the rental program.
A writing is defamatory if it exposes a person to public contempt, ridicule, aversion or disgrace, tends to induce an evil or unsavory opinion of him, or affects him in his profession by imputing fraud, dishonesty, misconduct or unfitness (Rinaldi v Holt, Rinehart Winston, 42 N.Y.2d 369, 379, rearg denied 42 N.Y.2d 1015, cert denied 434 U.S. 969; Tracy v Newsday, Inc., 5 N.Y.2d 134, 135-136). Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance (Aronson v Wiersma, 65 N.Y.2d 592, 593; Tracy v Newsday, Inc., supra). The court must decide whether there is a reasonable basis for drawing the alleged defamatory conclusion (James v Gannett Co., 40 N.Y.2d 415, 419, rearg denied 40 N.Y.2d 990). If the statements are reasonably susceptible of a defamatory connotation, it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader (Silsdorf v Levine, 59 N.Y.2d 8, 12-13, cert denied 464 U.S. 831; James v Gannett Co., supra). The court must neither strain to interpret the statements in their mildest and most inoffensive sense nor strain to find a defamatory interpretation when none exists (Cohn v National Broadcasting Co., 50 N.Y.2d 885, 887, cert denied 449 U.S. 1022; James v Gannett Co., supra; November v Time, Inc., 13 N.Y.2d 175, 178).
Applying those principles, we conclude that the words are reasonably susceptible of a defamatory interpretation. An average reader might understand the words to impute untrustworthiness or uncreditworthiness to plaintiffs, if not some affirmative wrongdoing such as fraud or conversion. Plaintiffs' submissions on the motion establish that such imputation of fraud or other wrongful conduct tended to subject them to public ridicule and could have affected them in their trade or business.