Summary
stating that when determining whether a fictitious work is defamatory a court "search[es] for similarities and dissimilarities"
Summary of this case from Elias v. Rolling Stone LLCOpinion
Argued October 26, 1983
Decided November 23, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, RICHARD LEE PRICE, J.
Myles C. Cunningham for appellant.
Richard Kurnit and Martin Garbus for respondents.
R. Bruce Rich, Lauren W. Field and Lois Peel Eisenstein for Association of American Publishers, Inc., amicus curiae.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Whether chapter 10 of the book "State of Grace" defamed plaintiff is the only issue before us. We agree with the Appellate Division that whether the complaint sufficiently alleges that the Lisa Blake, portrayed in that chapter as a whore, refers to plaintiff is a matter for the court, and that the similarity of given name, physical height, weight and build, incidental grooming habits and recreational activities of plaintiff and Lisa Blake, a minor character in a work of fiction, are insufficient to establish that the publication was "of and concerning" plaintiff ( Carlucci v Poughkeepsie Newspapers, 57 N.Y.2d 883; Allen v Gordon, 56 N.Y.2d 780, affg 86 A.D.2d 514; Sydney v MacFadden Newspaper Pub. Corp., 242 N.Y. 208, 214; Lyons v New Amer. Lib., 78 A.D.2d 723, app withdrawn 53 N.Y.2d 704).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed, with costs, in a memorandum.