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October 12, 1978

Philip HANDELMAN, Plaintiff,
HUSTLER MAGAZINE, INC. and Larry C. Flynt and Kevin Cash, Defendants

The opinion of the court was delivered by: SAND

Jurisdiction in this libel action is based upon diversity of citizenship. Plaintiff alleges that he was libeled by a Hustler feature article about William Loeb, publisher of the Manchester Union Leader and the New Hampshire Sunday News, which, among other matters, described the extensive litigation which raged over the estate of William Loeb's mother. The defendants in this case are Hustler Magazine, Inc., Larry C. Flynt, its publisher, and Kevin Cash, who allegedly wrote the article under the fictitious name, "Ben Steffens".

In his complaint, plaintiff states that he is the attorney who represented the executor of the Loeb estate. He alleges that he was libeled by one sentence in the Hustler article which reads: "Loeb, according to the book, *fn1" fought the will for about six years, letting high-priced New York lawyers eat up over $ 800,000. before withdrawing his complaint, leaving his daughter to pay taxes on the rest" *fn2" According to plaintiff, a lawyer who receives eighty per cent of an estate for a fee is "lacking in integrity and violating all existent standards with respect to ethical charges". Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, p. 5 (hereinafter "Plaintiff's Memo"). Thus, plaintiff argues that the article is libelous per se and actionable without proof of special damages. Defendants move for summary judgment on the grounds that (1) the statement is not actionable because it does not refer to plaintiff; (2) the published words are, as a matter of law, not libelous per se; and (3) even if they are libelous per se, the "single instance" rule makes the failure to allege special damages fatal. Plaintiff argues that there are disputed questions of fact which preclude summary judgment. For the reasons herein stated, summary judgment is denied.

 Under New York law, *fn3" the plaintiff must show that a libelous statement was published "of and concerning him". Julian v. American Business Consultants, Inc., 2 N.Y.2d 1, 155 N.Y.S.2d 1, 137 N.E.2d 1 (1956). As the Second Circuit has stated, the question is whether:

"the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff can make out that he is the person meant." Fetler v. Houghton Mifflin Co., 364 F.2d 650 (2d Cir. 1966).

 Moreover, it is for the jury to decide whether a written defamatory statement applies to plaintiff. Brayton v. Crowell-Collier Publishing Co., 205 F.2d 644 (2d Cir. 1953); Foltz v. News Syndicate Co., 114 F. Supp. 599 (S.D.N.Y.1953); Bridgewood v. Newspaper PM, Inc., 276 App.Div. 858, 93 N.Y.S.2d 613 (Second Dep't 1949). At trial, a plaintiff is entitled to prove this fact by the use of extrinsic evidence. *fn4"

 Defendants argue that this sentence does not refer to plaintiff. Under this interpretation:

"it is clear that . . . the object of the sentence is Mr. Loeb, not the attorneys for the estate. The clear import of the sentence is that Loeb's destructive purposes created such litigation and other legal proceedings as to cause a good deal of legal work in opposition to him. No conclusion adverse to the attorneys' involvement in these proceedings can fairly be drawn from that statement." Defendant's Memo, p. 12.

 Plaintiff, on the other hand, argues that in referring to the lawyers involved with the estate, the sentence clearly depicts the attorney of record for the estate.

 Clearly, the primary target of the article is Mr. Loeb. One may also read the sentence in question as being highly critical of the lawyers retained by Mr. Loeb to pursue allegedly frivolous claims, later abandoned, against the estate. The question is, however, whether a jury could find that the term "lawyers" refers not only to Mr. Loeb's attorneys but to Mr. Handelman as well. Under this interpretation, Mr. Handelman, as a member of the group, would still be entitled to recover. When a defamatory matter refers to a small group of persons, an individual member may recover if (1) the group or class is so small that the matter can reasonably be understood to refer to the member, or (2) the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member. Restatement (Second) of Torts, section 564A, Comment b, Illustration 3 (1977); see Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y.1952).

 Although we realize that the burden on plaintiff to show that a statement is "of and concerning him" is not a light one, *fn5" we cannot conclude that these words are incapable of supporting a jury's finding that the allegedly libelous statements refer to plaintiff.

 Besides contending that the sentence does not refer to plaintiff, defendants also argue that summary judgment is appropriate because the article is not libelous per se. An article is libelous per se that is, actionable without allegation or proof of special damages :

" "if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community, even though it may impute no moral turpitude to him' . . . (or) tends to disparage a person in the way of his office, profession or trade." Nichols v. Item Publishers, Inc., 309 N.Y. 596, 600-01, 132 N.E.2d 860, 861-862 (1956); quoting Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257 (1947).

 In determining whether this article is defamatory, this Court must decide whether the words are susceptible of the meaning ascribed to them. Tracy v. Newsday, Inc., 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 3, 155 N.E.2d 853 (1953).

 The article must be read as a whole, and the words used given their natural import, and their plain and ordinary meaning. November v. Time, Inc., 13 N.Y.2d 175, 178-79, 244 N.Y.S.2d 309, 194 N.E.2d 126 (1963). Finally, the publication must be tested by its effect upon the average reader. James v. ...

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