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LADANY v. WILLIAM MORROW & CO.

December 27, 1978

Shaul LADANY, Plaintiff,
v.
WILLIAM MORROW & COMPANY, INC. and Serge Groussard, Defendants



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

Plaintiff Shaul Ladany was a member of the Israeli Olympic team which participated in the September, 1972 Olympic games at Munich, Germany. The team was victimized by the murderous "Black September" terrorist attack. Defendant Serge Groussard, a French journalist, wrote a book about the attack. *fn1" It was published in France under the title "La Medaille de Sang." Defendant William Morrow & Company, Inc. ("Morrow") published an English translation titled "The Blood of Israel." The book contains a number of references to Ladany. He claims they are defamatory and constitute an invasion of his privacy. Damages and injunctive relief are sought from Morrow under the law of libel and the New York Civil Rights Law, ยงยง 50 and 51. Following extensive discovery, Morrow moves for summary judgment dismissing the complaint. Ladany cross-moves for summary judgment on the issue of liability.

I.

 As to plaintiff's claim for libel, the threshold question is whether the words complained of "are reasonably susceptible of a defamatory connotation"; that question is for the Court, not the jury. *fn2" James v. Gannett Co., Inc., 40 N.Y.2d 415, 418, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834, 837 (1976). *fn3" A publication's "susceptibility to a reading of libelous meaning, is a matter of law, not fact." El Meson Espanol v. NYM Corp., 521 F.2d 737, 739 (2d Cir. 1975), citing New York cases.

 Before considering the passages with which plaintiff finds fault, we must set the stage. *fn4" The teams participating in the 1972 Olympiad were housed in a specially constructed "Olympic Village" consisting of blocks of apartments. The Israeli team was quartered in 31 Connollystrasse, or "Block 31." Block 31 contained six apartments, numbered 1 through 6, with separate entrances. Ladany was one of six occupants of Apartment 2. He was a long-distance walker. The other occupants of Apartment 2 were Avraham Melamed, a swimmer; Dan Alon and Yehuda Weinstein, fencers; and Henry Hershkowitz and Zelig Shtroh, riflemen.

 The Black September terrorists began their attack on Block 31 in the early morning hours of September 5, 1972. They broke down the door to Apartment 1 and took six of its seven occupants hostage. The seventh occupant of No. 2, wrestling coach Moshe Weinberg, was surprised on the street walking home, wounded, and brought by the terrorists to Apartment 3, which they entered, taking six more hostages. The terrorists did not enter Apartment 2 because Weinberg apparently persuaded them that no Israelis were there.

 Ladany and his five companions in Apartment 2 escaped. Ladany complains in this action of the book's account of his escape. The passages of the book which Ladany claims are false and defamatory are set forth in his brief (pp. 7-11), and quoted below in their entirety: *fn5"

 
"Pages 44-46: So, Moshe Weinberg had saved the lives of the occupants of Apt. 2. Temporarily, or not? The terrorists had taken No. 1 and No. 3. The uneasy peace that, as 5:00 AM approached, still bathed No. 2, caught between the two captures, was strange and fraught with anxiety. With each passing instant, the danger increased.
 
"For one of the five Israelis in No. 2, the wait at the gates of hell was over. He was Shaul Paul Ladani, doctor of laws, professor of economics at Tel Aviv, thirty-six, walker, champion of Israel.
 
"I met him at least ten times during that day of September 5.
 
"On September 3, he had taken part in the 50-kilometer walk and come in 19th out of 36; he had been shown in close-ups on TV not because of placing 19th (although there is nothing shameful in that), nor because of his style or looks. He is a short man, whose slightly bowed legs are inordinately stocky and ill-proportioned. His thick myopic glasses kept sliding down his nose. Half bald, he had shaved off the remainder of his hair. As his arms worked frenetically, his shoulders heaved, and his hips swiveled in the intensity of the heel-and-toe event, he looked as though he were in torture which was absolutely not true.
 
"No, Shaul Ladani was on TV because he had been born in Germany, at seven had been arrested with his parents and sent to the extermination camp of Bergen-Belsen. In 1945, a miracle happened: he was included in a batch of children and old people an American organization was able to ransom from the Third Reich for a fortune in cash. His whole family had perished. He himself had typhus. Born April 2, 1936, he was going on the age of nine.
 
"He had escaped from Apt. 2 at about 4:30 AM, just after the terrorists broke into No. 1, while Gutfreund shouted the alarm.
 
" "Everything took place so fast, that I acted instinctively, without a chance to think,' he told me in a muffled even voice that was beyond pathos.
 
"I could see his dark eyes, behind the imitation-shell glasses. They dwelt on mine, but did not see me. He is solidly built, his thighs seem to be of steel; on the top of his head, the sparse hair was growing back, graying.
 
" "I was sleeping upstairs, on the garden side, alone,' he said. "It had just worked out that way. Strange voices jolted me awake. I had the feeling someone had called me, from downstairs. I went down the stairs. The calls came again, from outside, somewhere close by. The whole place was totally, strangely silent. I did not really know what it was, but it gave me the shivers. I went into the kitchen, because it seemed to me the shouts had come from the building lobby, which is alongside half our ground floor, from the kitchen to the wall on Connollystrasse.
 
" "Then I heard Gutfreund's voice, dimmed, but so recognizable, "Sakanah! Harbiya!" I understood, I thought well, I don't know what. I had the absurd feeling that everyone had run away, and I was left alone, and the Arabs were coming. I ran up to my room. I must have waited there a few seconds. I didn't dare move.
 
" "And then the shots rang out. Ever since Bergen-Belsen, I recognize them right off. It was Sokolovsky running out through the back of the Block on what we call the "garden path." I was sure it was from the main floor of our own apartment that the shots were raining. I opened the French window, and went out on the balcony. I looked at the distance to the ground five or six meters. I jumped. I skinned my knees pretty badly but didn't feel it at all. I got up and ran, and ran. Finally, I went into a building. Italians . . . Time to explain to them, and to call the police. The Germans had just heard about the attack. . . .'
 
"He stopped, and cracked his knuckles. He answered my question forthrightly: "Did I think of the others? Sure. I felt terribly sorry to leave Gutfreund and the other guys, but it wouldn't have done them any good at all, for me to be just another hostage.'
 
"Doing what he did, Ladani brushed up against death. He appeared in the fedayeen's view just as they finished shooting at Sokolovsky, now out of their sight. They were too surprised to fire at this man who appeared from nowhere, in white undershirt and shorts, running barefoot with his glasses slipping down his nose. He got to the main part of Connollystrasse, by going around the Bolivians' building. After that, he went forward in leaps and bounds, hiding in between walls or hydrants. He reached the Italians' quarters (the tower called 8-12 Connollystrasse) at only about 4:45 AM.
 
"Page 48: One of the other men in the apartment, the fencer Dan Alon, ran into the bedroom, shouting abruptly, "Has Shaul Ladani lost his marbles or what? He just suddenly disappeared, you should see how. Yehuda (Weinstain, also a fencer) and I heard some noise outside the window. I went to look, and Shaul was getting up. Had fallen, or jumped, from the second-story balcony. I yelled, "Shaul!" but he didn't even make a sign. He looked like one possessed. He probably didn't hear me: his knees were bleeding. He started to run as hard as he could toward the Girls' Village. In his underbriefs, can you imagine? Yehuda didn't want to wake you, but I thought "
 
"Page 49: Lalkin shook his head. Sure, something was going on. But where? Hershkowitz added, "Ladani beat it. Without a word. All alone. He went that way '
 
"And he pointed east, toward the wide part of Connollystrasse, the tall lacework of the towers. Lalkin nodded understanding.
 
"Page 53: In Apt. 2, Hershkowitz was the senior man, the guide. He felt very sure of himself, and knew Lalkin was right; yet his instinct told him to stay put. He explained to the others: "Ladani, running away by jumping like a goat, made the Arabs realize they were far from capturing the whole team. Anyway, they must have been at the Opening Ceremony, and they can count. They know that to get in here, they have to break the door down. They can see that won't be easy, because we could barricade it with furniture. By the presence of the security men they now know the police have been alerted. They must be afraid that if they try to storm our lodging Germans will shoot at them from the rear. So they're waiting for us to walk into the trap. They want us to do like Ladani, so they can shoot us down like rabbits.'
 
"The others were thinking. Zelig Shtroch put it: 'Maybe one of our guys they took told them Number Two has Uraguayans or the guys from Hong Kong in it. They never did get Ladani, so they may be thinking he was just a South American who got scared.'
 
"Page 54: "Listen. Let's admit you make it. OK. Maybe a second guy will, too. But there are four of us. They'd have to ...

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