In Allen v Gordon (86 A.D.2d 514, affd 56 N.Y.2d 780, supra), the only similarities between the plaintiff and the fictional character in the book were that both had the name "Dr. Allen" and both practiced psychiatry in Manhattan.Summary of this case from Cohen v. Herbal Concepts
January 12, 1982
Order, Supreme Court, New York County (Shorter, J.), entered April 2, 1981, which dismissed the third cause of action in the complaint on defendants' motion to dismiss the four causes of action in the complaint, unanimously modified, on the law, to the extent of dismissing also the first, second and fourth causes of action, and, as so modified, affirmed, without costs and disbursements. Plaintiff's action is for libel, invasion of privacy, negligence and injunctive relief. Under Rovello v Orofino Realty Co. ( 40 N.Y.2d 633) and Guggenheimer v. Ginzburg ( 43 N.Y.2d 268), it is clear that where the affidavits on a motion to dismiss made under CPLR 3211 (subd [a], par 7) conclusively establish that plaintiff has no cause of action, dismissal is warranted. Where the facts are not in dispute, the mere iteration of a cause of action is insufficient to sustain a complaint where such facts demonstrate the absence of a viable cause of action. On this record it is conceded that defendant Gordon was never treated by plaintiff, that the name "Dr. Allen" used in said defendant's book was selected at random as a commonly used name, that no first name and no physical description of the person called "Dr. Allen" was given in the book (other than he had an "angular" face), that the location of the office of "Dr. Allen" in the book is different from the location of plaintiff's office and that there was a disclaimer prominently displayed immediately prior to the first page of the text which indicated that all names used, other than defendant Gordon's were fictitious. Plaintiff clearly failed to show that the publication was "of and concerning" him and has failed to state a cause of action for libel. The mere fact that he is the only psychiatrist surnamed Allen in Manhattan is insufficient as the circumstances delineated above mandate the conclusion that there is nothing in the complaint showing that the book was about or referred to the plaintiff (see Julian v. American Business Consultants, 2 N.Y.2d 1, 17). The second cause of action for invasion of privacy under sections 50 Civ. Rights and 51 Civ. Rights of the Civil Rights Law fails because there is no clear identification of plaintiff in the portrayal of the character "Dr. Allen" in the book which would prompt a rational reader to conclude that plaintiff was being described (see Wojtowicz v. Delacorte Press, 58 A.D.2d 45, affd 43 N.Y.2d 858). Since no cause of action for libel or invasion of privacy exists, the third cause of action for negligence in failing to modify the character's name or to distinguish the psychiatrist in the book from plaintiff and the fourth cause of action for injunctive relief, necessarily fail.
Concur — Murphy, P.J., Birns, Sullivan, Lupiano and Bloom, JJ.