Summary
holding that publications "depicting plaintiff as a homosexual, or implying such, are defamatory per se"
Summary of this case from Stern v. CosbyOpinion
January 26, 1999.
Appeal from the Supreme Court, New York County (Lorraine Miller, J.).
Plaintiff's causes of action for discrimination based on sexual orientation is viable under the City Human Rights Law (Administrative Code of City of N.Y. § 8-107), which prohibits such discrimination, but is not viable under the State Human Rights Law, which does not prohibit such discrimination ( see, Tester v. City of New York, 1997 U.S. Dist LEXIS 1937, * 23-24 [SD N Y, Feb. 25, 1997, McKenna, J.]). Plaintiff's claims for discrimination based on ethnic origin are viable under both statutes, and were properly sustained in view of the evidence of persistent verbal abuse.
As a matter of law, the ethnic epithet and the disparaging references to plaintiff's hair in the cartoons identified as plaintiff's exhibits 3, 5 and 8, while vulgar and reprehensible, are not susceptible of a defamatory meaning ( see, O'Loughlin v. Patrolmen's Benevolent Assn., 178 A.D.2d 117; Weiner v. Double-day Co., 142 A.D.2d 100, 104-105, affd on other grounds 74 N.Y.2d 586, cert denied 495 U.S. 930). However, the cartoons depicting plaintiff as a homosexual, or implying such, are defamatory per se ( see, Dally v. Orange County Publs., 117 A.D.2d 577, 578), and are not protected merely because they appear in the form of parody or caricature ( see, Triggs v. Sun Print. Publ. Assn., 179 N.Y. 144, 155; Frank v. National Broadcasting Co., 119 A.D.2d 252). Plaintiff's claim for punitive damages in connection with his causes of action under the City Human Rights Law ( see, Walsh v. Covenant House, 244 A.D.2d 214), and for defamation ( see, Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 480), are viable. We have considered defendants' other arguments and find them unpersuasive.
Concur — Rosenberger, J.P., Ellerin, Tom and Mazzarelli, JJ.