Khan v. Newsweek, Inc.

• Decision Date: 17 April 1990
• Citation: 160 A.D.2d 425,554 N.Y.S.2d 119
• Parties: , 17 Media L. Rep. 1940 Mahmood KHAN & Wardug Tyre Company, Limited, Plaintiffs-Respondents, v. NEWSWEEK, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 119

554 N.Y.S.2d 119

160 A.D.2d 425, 17 Media L. Rep. 1940

Mahmood KHAN & Wardug Tyre Company, Limited, Plaintiffs-Respondents, v. NEWSWEEK, INC., Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

April 17, 1990.

L.A. Cohen, for plaintiffs-respondents.

L.A. Kaplan, for defendant-appellant.

Before KUPFERMAN, J.P., and ASCH, KASSAL, ELLERIN and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered July 21, 1988, which denied defendant's motion to dismiss the amended complaint for failure to state a cause of action [CPLR § 3211(a)(7) ] or, alternatively, to dismiss the action as barred by the First and Fourteenth Amendments to the United States Constitution and Article I Section 8 of the New York State Constitution, is affirmed, without costs.

This is an action for libel brought by a Pakistani businessman and a corporation of which he is the principal shareholder, Wardug Tyre Company, Ltd., against Newsweek, Inc., based on an article appearing in the October 10, 1983 international edition of Newsweek magazine. The cover of this issue featured a headline reading, "The Secret Warriors" with a subtitle, "The CIA Is Back in Business". The inside article is entitled, "The Afghan Connection," and the offending material reads as follows:

Recently, a Pakistani businessman who had long lived in the United States started building a tire factory in Peshawar. But Pakistani police discovered that some of the crates of "equipment" delivered to the factory contained arms. The businessman was arrested, released and has faded from view. Many Pakistani industrialists do not think he would have embarked on such a major investment as a free-lance arms merchant: the CIA, they point out, was probably a silent partner.

That it is the individual plaintiff who is referred to in this paragraph is not disputed by defendant and, indeed, there is apparently no question that plaintiff Khan would be readily identifiable in Pakistan as the Pakistani businessman referred to.

The dissent concludes that the language in question was "obviously not meant to be abusive of the plaintiff" and that "[t]o be a 'free-lance arms merchant' is not necessarily to be in the export trade or smuggling." At issue in this appeal, however, is the very narrow determination of whether the complaint is insufficient as a matter of law. On this record, we cannot reach such a conclusion.

A motion to dismiss for failure to state a cause of action assumes the truth of the material allegations and everything reasonably to be implied therefrom. See Foley v. D'Agostino, 21 A.D.2d 60, 65, 248 N.Y.S.2d 121. In determining such a motion, it is not the function of the court to evaluate the merits of the case, Carbillano v. Ross, 108 A.D.2d 776, 777, 485 N.Y.S.2d 110, or express an opinion as to plaintiff's ability to ultimately establish the truth of the averments. 219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 509, 414 N.Y.S.2d 889, 387 N.E.2d 1205. Rather, the plaintiff must be "given the benefit of every possible favorable inference", Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970, and the motion to dismiss will fail if, "from [the pleading's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law". Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17.

Upon applying these principles to the facts before us, we conclude that the statements at issue are "reasonably susceptible of a defamatory connotation", James v. Gannett Co., Inc., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 353 N.E.2d 834, particularly when considered, as they must be, in context, and when the language is given the requisite "natural reading," i.e., not read "as mildly as possible at one extreme, or to find defamatory innuendo at the other". Weiner v. Doubleday & Co., Inc., et al., 74 N.Y.2d 586, 596, 550 N.Y.S.2d 251, 549 N.E.2d 453.

All concur except KUPFERMAN, J.P. who dissents in a memorandum as follows:

KUPFERMAN, Justice Presiding (dissenting).

Newsweek magazine, in October, 1983, published an article entitled "The Afghan Connection". Under the illustration for the article is the descriptive phrase "Rebels in the Afghan hills: Arms and ammunition courtesy of the C.I.A.?"

Several parts of the article are italicized as is the one specifically complained of, which reads as follows:

Recently, a Pakistani businessman who had long lived in the United States started building a tire factory in Peshawar. But Pakistani police discovered that some of the crates of "equipment" delivered to the factory contained arms. The businessman was arrested, released and has faded from view. Many Pakistani industrialists do not think he would have embarked on such a major investment as a free-lance arms merchant: the CIA, they point out, was probably a silent partner.

The plaintiffs are a Pakistani businessman and a company building a tire factory in Peshawar of which plaintiff is an executive.

It is contended that the article is false and defamatory in that it refers to the plaintiff as an arms merchant and smuggler, states he is affiliated with the C.I.A. and that crates of equipment delivered to his factory contained arms.

It is alleged, in two causes of action in the amended complaint, that arms smuggling is a crime in Pakistan interdicted by an Export Trade Control Order. It is further postulated that Pakistan is an Islamic State and that the U.S. Government, of which the C.I.A. is an arm, is considered anti-Islamic by the Pakistani public. Pro C.I.A. activity is considered immoral, causing plaintiff to be "the object of ridicule, scorn and hatred" and to lose employees who...