affirming the trial court’s holding that the plaintiff failed to state a Section 51 claim even though the character in the novel State of Grace was based on the plaintiff, shared “some physical similarities” with the plaintiff, and had the same “common first name,” but not the same last name, as the plaintiff
How later courts described this case
- affirming the trial court’s holding that the plaintiff failed to state a Section 51 claim even though the character in the novel State of Grace was based on the plaintiff, shared “some physical similarities” with the plaintiff, and had the same “common first name,” but not the same last name, as the plaintiff
- in case involving allegedly libelous depiction of plaintiff in novel, there was “no warrant for the invocation of the prima facie tort doctrine” where plaintiff could not succeed “without, at the same time, establishing the classical tort of libel”
- similarities in name, physical height, weight, build, incidental grooming habits, and recreational activities held'- insufficient to establish the “of and concerning” element in light of the “profound” dissimilarities “both in manner of living and in outlook”
- "[T]o be actionable[,] the description of the fictional character must be so closely akin to the real person claiming to be defamed that a reader of the book, knowing the real person, would have no difficulty linking the two."
Written by the judges who cited it.
The opinion
Kupferman, J. P. (dissenting in part).
I dissent and would affirm. The majority opinion fairly states the facts, although it omits and glosses over items of similarity which would indicate that the character portrayed in the defendants’ novel refers to the plaintiff.
It cannot be determined, as a matter of law (cf. Carlucci v Poughkeepsie Newspapers, 57 NY2d 883 ) that the writing is not “of and concerning” the plaintiff.
The court accepts the fact that the defendant author contemplated including the plaintiff in his book, although the portrayal would have been of a more appealing character. There can be no question but that the portrayal in the book is defamatory, and the only issue is identification. The dissimilarities which the court stresses, “both in manner of living and in outlook”, are the very basis for the allegations of defamation. To accept them as leading to the conclusion that there is no connection is the essence of a bootstrap operation.
The record contains a letter from a former lecturer and teacher at Columbia University who had known both the plaintiff and the author defendant, which has the following paragraph:
“I have read Robbie’s book and am absolutely amazed that he has put Lisa into it — under her own name! — as a psychology student who has become a high-class prostitute. What a childish revenge! She is described making torridly clinical love’ to an Italian tycoon-gangster who connives to have the pope killed...I wonder if L. [Lisa] has read it??” (emphasis added).
Markewich, Silverman and Milonas, JJ., concur with Bloom, J.; Kupferman, J. P., dissents in part in an opinion.
Order, Supreme Court, New York County, entered on September 24, 1981, modified, on the law, to dismiss the first, second and seventh causes of action and, except as so modified, affirmed, without costs and without disbursements.