Opinion
December 16, 1983
Appeal from the Supreme Court, Oneida County, Stone, J.
Present — Hancock, Jr., J.P., Callahan, Boomer, Green and Schnepp, JJ.
Order unanimously affirmed, without costs. Memorandum: Plaintiff sued the publisher and the distributor of a magazine which appeals to homosexual males and alleged two causes of action. First, plaintiff alleged that defendants used his photograph without his consent for advertising purposes in violation of section 51 Civ. Rights of the Civil Rights Law. Plaintiff also alleged libel in that the advertisement contained false and imaginary first person statements which conveyed thoughts and feelings which were not his, and knowingly conveyed the impression that plaintiff is a homosexual, which he alleged he is not. Plaintiff demanded compensatory and punitive damages on each cause of action. Special Term denied defendants' motions to dismiss for failure to state a cause of action (CPLR 3211, subd [a], par 7). We affirm, but unlike Special Term we do not find it necessary to pronounce a State-wide standard of proof in libel cases within the procedural context of a motion to dismiss. The United States Supreme Court has set an uncertain limit of proof in libel cases by holding that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual" ( Gertz v Robert Welch, In., 418 U.S. 323, 347). To our knowledge, no State court has decided the precise standard of fault applicable to the case at bar in which a private person has alleged libel contained in an advertisement in a magazine that is neither within the sphere of legitimate public concern nor deals with a newsworthy subject (cf. Rupert v. Sellers, 65 A.D.2d 473, affd 50 N.Y.2d 881, cert den 449 U.S. 901; Gaeta v. New York News, 95 A.D.2d 315; Hogan v. Herald Co., 84 A.D.2d 470, 475, n 3). Here plaintiff has alleged that defendants published and distributed a magazine containing defamatory representations in a malicious, wanton, reckless and careless manner without first making an investigation to ascertain the truth or falsity of the contents of the advertisement contained therein. These allegations would be sufficient to meet any predictable burden of proof be it negligence, actual malice or some intermediate degree of fault (see Rupert v. Sellers, supra; Restatement, Torts 2d, § 580B). "Under modern pleading theory, a complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists" ( Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634; see, Underpinning Foundation Constructors v. Chase Manhattan Bank, 46 N.Y.2d 459, 462; Siegel, N.Y. Prac, § 265). "[P]leadings must survive a motion to dismiss so long as they give the court and the parties notice of what is intended to be proved and the material elements of each cause of action ( Foley v. D'Agostino, 21 A.D.2d 60; 4 Weinstein-Korn-Miller, N.Y. Civ Prac, par 3211.36)" ( Meese v. Miller, 79 A.D.2d 237, 244; see, also, CPLR 3013, 3016). Because defendants' motions were to dismiss, rather than for summary judgment, plaintiff had no obligation to show evidentiary facts to support the allegations in his complaint (see Scacchetti v. Gannett Co., 90 A.D.2d 985, 986). Considering the advertisement within the context of the entire magazine (see Silsdorf v. Levine, 59 N.Y.2d 8, 13; Russo v Padovano, 84 A.D.2d 925), plaintiff has sufficiently alleged a cause of action against both defendants for libel ( Hogan v Herald Co., supra; Nowark v. Maguire, 22 A.D.2d 901; Prosser, Law of Torts [4th ed], § 112, p 762) and violation of section 51 Civ. Rights of the Civil Rights Law (see Spahn v. Julian Messner, Inc., 21 N.Y.2d 124) for both compensatory damages (see Welch v. Mr. Christmas, 57 N.Y.2d 143; Hogan v. Herald Co., supra, pp 480-481) and punitive damages (see Whelehan v. Yazback, 84 A.D.2d 673, 674).