Steak Bit of Westbury, Inc. v. Newsday, Inc.

• Court: United States State Supreme Court (New York)
• Writing for the Court: BERTRAM HARNETT
• Citation: 70 Misc.2d 437,334 N.Y.S.2d 325
• Parties: STEAK BIT OF WESTBURY, INC., Plaintiff, v. NEWSDAY, INC. and Stan Isaacs, Defendants.
• Decision Date: 22 June 1972

Page 325

334 N.Y.S.2d 325 70 Misc.2d 437 STEAK BIT OF WESTBURY, INC., Plaintiff,
v.
NEWSDAY, INC. and Stan Isaacs, Defendants. Supreme Court, Special Term, Nassau County, Part I. June 22, 1972.

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[70 Misc.2d 438] Joseph Leder, Flushing, for plaintiff.

Townley, Updike, Carter & Rodgers, New York City, for defendants.

MEMORANDUM

BERTRAM HARNETT, Justice.

The fact that a featured newspaper article likely will never be in the running for the Pulitzer Prize, nor even be a model for a journalism workshop, is excusable. But, can it blithely knock a public restaurant? And in Yiddish, yet?

I. The Published Statements

An article headed 'The Eat-Out on Old Country Road' was written by Stan Isaacs, a regular feature columnist for Newsday, a daily Long Island newspaper, and appeared in his May 3, 1971 column. It spun a

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yarn of five couples, dubbed 'The Old Country Road Food and Wine Society Take-Out Restaurant Clambake', making a food sampling tour of twelve 'take-out' restaurants located along a mile and one-half stretch of Old Country Road in Westbury, New York.

Isaacs described various experiences and anecdotes of tasting and commenting in each successive eating place, and in the 'Gluttons' Report' appearing in the center of the article presented a table of ratings for 'Food Quality' and 'Food Quality Adjusted for Other Factors', in which Lollypop Drive-In (a restaurant owned by the plaintiff Steak Bit of Westbury, inc., a corporation), was rated lowest on both scores, twelfth out of the twelve places visited.

The article went on to describe the group's cumulative assessment of its gourmet tour:

'A spokesman for the negative said 'On the whole I thought it was a pretty unappetizing group of eating places. It was mostly all fake food, ground-up schmutz". (emphasis added)

These statements are claimed by Lollypop's owner to be libelous resulting in general damage to its goodwill and reputation. In their motion for summary judgment, Newsday and Isaacs place no reliance upon the literal truth of the statements made, but they do claim that the article is light-humored and in no way reflects malice towards Lollypop or any other restaurant.

II. The Contested Language Does Not Add Up To Defamation

In order to be defamatory, a statement must convey a degrading imputation. 34 N.Y.Jur., Libel and Slander, § 7, p. 476. See, O'Connell v. Press Publishing Co., 214 N.Y. 352, 103 N.E. 556. In the case of claimed defamation of a corporation the test is whether the published statement relates to its business so as to affect the confidence of the public and drive away its customers. See, Reporters' Assn. v. Sun Printing and Publishing Assn., 186 N.Y. 437, 79 N.E. 710; [70 Misc.2d 439] Isaacs v. Pan American Trading Co., 7 A.D.2d 757, 181 N.Y.S.2d 19. However, where, as here, special damages are not claimed, Drug Research Corp. v. Curtis Publishing Co., 7 N.Y.2d 435, 441, 199 N.Y.S.2d 33, 37, 166 N.E.2d 319, 322; Kings Creations, Ltd. v. Conde Nast Publications, Inc., 34 A.D.2d 935, 311 N.Y.S.2d 757, 'mere disparagement of the quality' of a product or service sold to the public is not libelous, in and of itself. Marlin Firearms Co. v. Shields, 171 N.Y. 384, 64 N.E. 163. The words written must go further than a bare opinion of quality. They must import that the supposedly libelling party is 'guilty of deceit or malpractice', or impute to him 'dishonesty, fraud, deception, or other misconduct in his trade'. Le Massena v. Storm, 62 App.Div. 150, 154, 155, 70 N.Y.S. 882, 884; Harwood Pharmacal Co., Inc. v. National Broadcasting Co., Inc., 9 N.Y.2d 460, 463, 214 N.Y.S.2d 725, 727, 174 N.E.2d 602, 603; Payrolls

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and Tabulating, Inc. v. Sperry Rand Corp., 22 A.D.2d 595, 257 N.Y.S.2d 884; Tracy v. Newsday, Inc., 5 N.Y.2d 134, 182 N.Y.S.2d 1, 155 N.E.2d 853.

A. Anecdotes and Quality Rating

The sought humorous tone of Isaacs' article does not obscure the ostensible purpose of the tour--to evaluate in a casual and thoroughly lightheaded manner the quality of service and food in twelve neighborhood restaurants. The article itself reflects the purpose of conveying the restaurant ratings, as well as the amusing experiences of people on a party, to Newsday readers.

The low comparative evaluation of Lollypop in the 'Gluttons' Report' in the manner presented is essentially a statement about quality of food, service and 'other factors' which, though uncomplimentary like the description 'pretty unappetizing group of eating places', is nonetheless devoid of any apparent implication of fraud or dishonest practice. Nor does the one statement made specifically about plaintiff, 'A suggestion to try only the pinball machines at the Lollypop Drive-In was rejected for an order of fried clams', seem substantial in derogatory content.

The characterization of the tour, generally, as one of 'take-out' restaurants is not believed defamatory as to Lollypop, which, as described in the complaint, is a 'Drive-In', has outdoor eating facilities and derives ten per cent of its business from take-out trade. Even were the characterization inaccurate, there is not a sufficient derogation in the 'take-out' description to be defamatory of an eat-in place, particularly one which, by its own statements, is not 'like a fancy Manhattan restaurant'.

B. Schmutz and Fake Food

The statement which Lollypop most vigorously resents is the reference to the group of twelve places in these terms: 'It was [70 Misc.2d 440] mostly all fake food, ground-up schmutz'. (emphasis supplied). This is the crux of this case.

The words used reflect a lack of focus upon any one or several eating places. The general and somewhat vague terms used, 'mostly' and 'on the whole', indicate that some places visited were not subject to the general condemnation of the 'negative' spokesman, although it is improbable that Lollypop, in view of its double low rating in the 'Gluttons' Report' could escape the impact of the description.

But, the fact that the article does not mention the plaintiff by name, does not render the statement free of libel if derogatory import may be fairly derived and attributable to Lollypop. Harwood Pharmacal Co., Inc. v. National Broadcasting Co., Inc., Supra. Moreover, in assessing content, it is immaterial that the author may not

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have intended a defamatory interpretation since libel is judged by what the reader might reasonably understand the words to mean. Cheatum v. Wehle, 5 N.Y.2d 585, 594, 186 N.Y.S.2d 606, 612, 159 N.E.2d 166, 171.

'Schmutz' is a word in wide use in Yiddish parlance, although like many such expressions is also German in content. In generally accepted pronunciation, the word rhymes with 'puts'. It means, 'dirt,...