It is alleged in this libel action that defendants FOX TELEVISON STATIONS,

INC. (FTS), FOX ENTERTAINMENT GROUP (FEG), FOX BROADCASTING COMPANY (FBC) and LUKE FUNK (collectively "the FOX defendants") broadcast during the regular April 30, 2010 10:00 P.M. newscast on WNYW (FOX 5) Channel 5, in the New York City television market, and posted on the FOX 5 internet site, www.myfox.ny.com, a story about the unsealed indictment of Wesam El-Hanafi, the brother of plaintiffs WALID ELHANAFI and MOHAMED ELHANAFI (collectively "the ELHANAFI brothers"). The indictment accused Wesam El-Hanafi of traveling in February 2008 to Yemen to meet with members of Al-Qaeda.

Plaintiffs allege, in ¶ 33 of their verified complaint, that the April 30, 2010-newscast "stated and portrayed the Plaintiff(s) as being involved in Al-Qaeda terrorist activities and clearly implied that said Plaintiff(s) used a Pay-O-Matic/Western Union check cashing/money transferring location (located at 2107 Bath Ave, Brooklyn NY 11224) for the purposes of wiring funds to aid Al-Quaeda terrorists." Further, the verified complaint alleges, in ¶ 34, that the subject news story identified plaintiffs

as the brothers of indicted Wesam El-Hanafi and displayed wrongfully obtained

copies of drivers' licenses and other photo identification of the ELHANAFI brothers.

Moreover, ¶ 35 alleges that the subject news story implied that plaintiffs' use of a store at 2107 Bath Avenue, Brooklyn (around the corner from their house) to wire money abroad implicated them with terrorist crimes alleged to have been committed by their indicted brother. The gist of the verified complaint is stated in ¶ 36 of the verified complaint:

The news broadcast is libelous on its face and the Defendant(s)

FOX and LUKE FUNK libeled Plaintiff(s) per se. The news broadcast

and circulation of the internet by the Defendant(s) FOX and LUKE

FUNK, concerning the Plaintiffs was false and defamatory. It clearly

exposes Plaintiffs to hatred, contempt, ridicule and obloquy because

it portrays them as terrorists and/or terrorist sympathizers/abettors,

when there is no truth to said allegation. [Emphasis added]

Then, the verified complaint, in ¶ 39, alleges that as a result of the publication of the subject news story "the Plaintiffs have been publicly disgraced and humiliated, have been injured in their good names and reputations in the community in which they reside and throughout the area in which the publication and circulation occurred, and have sustained mental and physical anguish and suffering to their damage."

FOX defendants move for an order, pursuant to CPLR Rules 3211 (a) (1) and (7) and CPLR Rule 3212, "dismissing the complaint . . . in its entirety . . . on the ground that the complained of news report is not reasonably susceptible of a defamatory meaning or defamatory of plaintiffs, plaintiffs have not pled and cannot prove intent." Plaintiffs cross-move "for an Order denying the Defendants motion seeking dismissal and/or summary judgment; or in the alternative for an Order permitting the Plaintiffs to file an amended complaint." While plaintiffs believe that they [*2]do not have to specifically plead intent by the FOX defendants, the alternative relief requested, to plead intent, is proposed if the Court agrees with the FOX defendants.

For the reasons explained in this decision and order, the Court denies the instant CPLR Rule 3211 motion by FOX defendants. There are triable issues of fact whether the subject April 30, 2010-news story exposed the ELHANAFI brothers to hatred, contempt, ridicule and obloquy by subjecting them to public disgrace, humiliation and harm to their reputations in the community, because the average viewer of the subject April 30, 2010- news story or internet post might infer that plaintiffs are terrorists and/or terrorist sympathizers/abettors. Inasmuch as FOX defendants have made their motion as a CPLR Rule 3211 pre-answer motion to dismiss, the Court cannot in the alternative consider their motion as a CPLR Rule 3212 summary judgment motion. CPLR Rule 3212 (a) states that "[a]ny party may move for summary judgment in any action, after issue has been joined." FOX defendants have yet to join issue. They have leave to move for summary judgment after issue has been joined. The cross-motion of plaintiffs ELHANAFI brothers is granted to the extent that the motion of FOX defendants is denied. Further, there is no need for plaintiffs to file an amended complaint to specifically allege intent by FOX defendants.

As noted above, this action is predicated on an April 30, 2012-news story broadcast on FOX 5 and posted on the FOX 5 website. FOX defendants and plaintiffs ELHANAFI brothers have provided the Court with DVD copies of the subject news story. The Court viewed and listened to the DVD of the subject news story when counsel for both sides argued the motion and cross-motion and when preparing this decision and order.

The subject news story was reported by then FOX 5 political reporter Dick Brennan [who subsequently left FOX 5 after the motion and cross-motion were submitted and is now a reporter for CBS' New York City television station, WCBS, Channel 2]. According to Mr. Brennan's affidavit (in which he uses his formal first name, "Richard"), attached to the motion, Mr. Brennan states that he learned of Wesam Elhanafi's indictment on April 30, 2012 and was assigned to prepare a news report. Further, he learned that the Wesam Elhanafi lived in Bath Beach, Brooklyn and went there for an on-camera report. He admits to interviewing "Allan Rose, who informed me that members of the Elhanafi family would go to his Western Union store and cash checks or send money to Egypt." He claims that this showed them to be a "regular, hard-working immigrant family." Further, "[m]y understanding is that immigrant families of various ethnic groups all around New York City often send money to family members abroad and the Elhanafi family appeared to be no exception."

In his news story, Mr. Brennan focused on the Elhanafi family home in Bath Beach, Brooklyn, where all three brothers lived. Mr. Brennan states he "caught up with one of the suspect's brothers." Then, the news clip shows an interview with one of the plaintiffs and another man who deny the guilt of the indicted brother. This fades as the news clip shows courtroom sketches of the indicted brother and another accused, Sabirhan Hasanoff, against the background of the indictment. Then, New York City Police Commissioner Raymond Kelly is on screen remarking that ten terrorist plots against New York City have been stopped since 9/11. There is a voice-over narration by Mr. Brennan that the two indicted men were longtime Brooklyn residents and "the feds have been watching the Elhanafi house in Bath Beach round the clock for months." This is followed by an immediate cut to a neighbor woman who states "I'm [*3]absolutely shocked. I had absolutely no idea what was going on and I am completely surprised that somebody on my block was arrested." The story then cuts to the reporter's voice, against the backdrop of the Bath Avenue Pay-O-Matic/Western Union location, around the corner from the Elhanafi home, stating this is where the family "cashed everyday checks and wire money abroad, but nothing illegal," with a background changed to black and white copies of plaintiffs' driver's licenses and Pay-O-Matic photo identification cards, along with copies of checks and receipts for banking transactions. Then, the news story quickly juxtaposes the indictment seen earlier with its caption showing the names of the accused, Wesam El-Hanafi and Sabirhan Hasanoff. There is a montage shown of grainy photographs and legal documents identifying plaintiffs, the ELHANAFI brothers, and the legal document with the names of the indicted suspects, Wesam El-Hanafi and Sabirhan Hasanoff. The news story then cuts to another neighbor woman, who states "That is not a comfortable feeling. It's a very uncomfortable to know it's going on in your own neighborhood." Against a background of courtroom sketches and legal documents, Mr. Brennan states "Elhanafi then traveled to Yemen to meet with Al-Qaida and took an oath of allegiance to the group but his family says they love America." The news clip then cuts back to the unnamed Elhanafi brother, who states "He's got kids. His boy's an American born. I work for Veteran Affairs. I love this country as much as anybody else. I don't think anybody will do that for my country because this is my country." Finally, Mr. Brennan ends the story with information about the arraignment of the indicted suspects in Virginia, how it could take months for them to be transported to New York, and that each indicted suspect could receive a sentence of up to fifteen years in prison.

Plaintiffs' counsel, in his memorandum of law in opposition to the instant motion, notes that both plaintiffs are Americans with Middle Eastern names. Further, WALID ELHANAFI works for the U.S. Department of Veterans Affairs and is a Building and Zoning Consultant, while MOHAMMED ELHANAFI works for the City University of New York as an Investigation Specialist. Also, plaintiffs have lived at the same Bath Beach address for eleven years.

Plaintiffs' counsel, in essence, argues that the subject news story, viewed as a whole to the average viewer, presents: a Middle Eastern looking Elhanafi brother protesting the innocence of the indicted alleged terrorist third brother; all living together; the wiring of money abroad; the shock and dismay of neighbors; and, plaintiffs as terrorists. On the other hand, counsel for the FOX defendants claims that the subject news story is not reasonably susceptible of defamatory meaning. The Court finds that there are triable issues of fact whether the subject news story to the average viewer is reasonably susceptible to defamatory meaning and implies that plaintiffs are terrorists.Therefore, the instant motion to dismiss by the Fox defendants is denied and the instant cross-motion of plaintiffs is granted to the extent of dismissing the instant motion

"When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Milstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994])." (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]). Further, the Court, in Morris v Morris (306 AD2d 449, 451 [2d Dept 2003]), instructed: [*4]

In determining whether a complaint is sufficient to withstand a motion

pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the

pleading states a cause of action, and if from its four corners factual

allegations are discerned which taken together manifest any cause of

action cognizable at law a motion for dismissal will fail" (Guggenheimer

v Ginsburg, 43 NY2d 268, 275 [1977]. The court must accept the facts

alleged in the complaint to be true and determine only whether the facts

alleged fit within any cognizable legal theory [see Dye v Catholic Med.

Ctr. of Brooklyn & Queens, 273 AD2d 193 [2000]. However, bare

legal conclusions are not entitled to the benefit of the presumption

of truth and are not accorded every favorable inference [see

Doria v Masucci, 230 AD2d 764 [2000]. When the moving party

offers evidentiary material, the court is required to determine

whether the proponent of the pleading has a cause of action, not

whether [he or] she has stated one [see Meyer v Guinta, 262 AD2d

463, 464 [1999]. Likewise, to succeed on a motion to dismiss pursuant

to CPLR 3211 (a) (1), the documentary evidence which forms the basis

of the defense must be such that it resolves all factual issues as a matter

of law, and conclusively disposes of the plaintiff's claim (see Trade

Source v Westchester Wood Works, 290 AD2d 437 [2002]).

(See Euell v Incorporated Village of Hempstead, 57 AD3d 837 [2d Dept 2008]; GuideOne Speciality Ins. Co. v Admiral Ins. Co., 57 AD3d 611 [2d Dept 2008]; Ruffino v New York City Transit Authority, 55 AD3d 817 [2d Dept 2008]; Katz v Katz, 55 AD3d 680 [2d Dept 2008]; Breytman v Olinville Realty, LLC, 54 AD3d 703 [2d Dept 2008]; NCJ Cleaners, LLC v ALM Media, Inc., 48 AD3d 766 [2d Dept 2008])

In analyzing the instant CPLR Rule 3211 motion to dismiss, reviewing the arguments of plaintiffs and FOX defendants, viewing the DVD of the subject news story, accepting "the facts as alleged in the complaint as true," according "plaintiffs the benefit of every possible favorable inference" and determining "whether the facts as alleged fit within any cognizable legal theory," the Court finds that plaintiffs' complaint states a cause of action for libel per se. In Matovcik v Times Beacon Record Newspapers (46 AD2d 636, 637 [2d Dept 2007]), the Court instructed:

"The essence of the tort of libel is the publication of a statement

about an individual that is both false and defamatory" (Brian v

Richardson, 87 NY2d 46, 50-51 [1995]). A defamatory statement

is libelous per se if the statement "tends to expose the plaintiff to

public contempt, ridicule, aversion or disgrace, or induce an evil

opinion of him in the minds of right-thinking persons, and to deprive

him of their friendly intercourse in society" (Rinaldi v Holt, Rinehart

& Winston, 42 NY2d 369, 379 [1977], cert denied 434 US 969 [1977]

[internal quotation marks omitted]). Additionally, a defamatory [*5]

statement is libelous per se if it imputes fraud, dishonesty, misconduct,

or unfitness in conducting one's profession (see Kotowski v Hadley,

38 AD3d 499, 500 [2d Dept 2007]; Gjonlekaj v Sot, 308 AD2d 471,

473-474 [2d Dept 2003]; Wasserman v Haller, 216 AD2d 289 [2d

Dept 1995]).

The Court, in Dillon v City of New York (261 AD2d 34, 38 [1d Dept 1999]), held that in a defamation cause of action "[t]he elements are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se (Restatement [Second] of Torts § 558)." Moreover, in determining if particular words are defamatory "[t]he words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction [Emphasis added]." (Aronson v Wiersma, 65 NY2d 592, 594 [1985]). (See Golub v Enquirer/Star Group, Inc., 89 NY2d 1074, 1075 [1997]; Le Blanc v Skinner, ___AD3d___, 2012 NY Slip Op 08494 [2d Dept Dec. 12, 2012]; Perez v Lopez, 97 AD3d 558 [2d Dept 2012]; Diorio v Ossining Free School Dist., 96 AD3d 710 [2d Dept 2012]; Knutt v Metro Intern., S.A., 91 AD3d 915 [2d Dept 2012]; AVA v NYP Holdings Inc., 64 AD3d 407 [1d Dept 2009]). It is a triable issue of fact for a jury to determine if the subject news story, when viewed and listened to by the average viewer, harms plaintiffs by portraying them as terrorists. It appears that in the subject news story the juxtaposition of aural and visual imagery creates the portrayal of plaintiffs as Middle Eastern terrorists.

Defamation is either in the form of slander, which is defamatory to the ear, or libel, which is defamatory to the eye. (AVA v NYP Holdings Inc. at 411). Further, "[l]ibel is

broken down into two discrete forms—libel per se, where the defamatory statement appears on the face of the communication, and libel per quod, where no defamatory statement is present on the face of the communication but a defamatory import arises through reference to facts extrinsic to the communication." (AVA v NYP Holdings Inc. at 412). A statement may be defamatory on its face "if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community. (Mencher v Chesley, 297 NY 94, 100 [1947])." (Golub v Enquirer/Star Group, Inc. at 1076). (See Geraci v Probst, 15 NY3d 336, 244 [2010]. Moreover, in a libel per se action, with respect to special damages, the "law presumes that damages will result, and they need not to be alleged or proven." (Liberman v Gelstein, 80 NY2d 429, 435 [1992]). This is because "important social values . . . underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation." (Rosenblatt v Baer, 383 US 75, 86 [1966]).

A jury can find that the subject news story, with its juxtaposition of aural and visual imagery, creates the portrayal of plaintiffs as Middle Eastern terrorists. The subject news story contains mug-shot like photographs of plaintiffs in relation to wiring money overseas against images of court documents and courtroom sketches relating to plaintiffs' indicted brother. This meets the defamation standard as set above in Dillon v City of New York and the standards for libel per se as articulated above in AVA v NYP Holdings Inc. As noted by the Court of Appeals [*6]in Aronson v Wiersma at 594, the words and imagery in the subject news story "must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader [Emphasis added]." The Court of Appeals, earlier this year, in Thomas H. v Paul B. (18 NY3d 580, 584), instructed that "[m]aking a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation (see e.g. Geraci v Probst, 15 NY3d 336, 344 [2010]; Foster v Churchill, 87 NY2d 744, 751 [1996])." The sequence of cuts in the subject news story could implant in the minds of the average viewer that plaintiffs and their indicted brother all engaged in terrorist activities, including wiring money abroad, and that the once friendly relationship plaintiffs had with their neighbors in Bath Beach has turned to suspicion, fear and mistrust.

Further, FOX defendants claim that plaintiffs have failed to plead, and cannot prove, intent on the part of FOX defendants to imply a defamatory implication. Moreover, FOX defendants rely upon the Richard Brennan affidavit to show that there was no defamatory intent on their part. However, "malice in fact may be inferred from the language of the communication itself, as well as from extrinsic evidence." (Hastings v Lusk, 22 Wend 410, 421 [1839]). A jury, as trier of fact, can infer that the subject news story to the average viewer implies that plaintiffs were acting in concert with their indicted brother and engaged in terrorist activities. The trier of fact can find from the subject news story malicious intent on the part of FOX defendants. Issues exist whether FOX defendants unlawfully obtained plaintiff's personal identification from Western Union/Pay-O-Matic. Further, the bulk of the subject newscast concerns plaintiffs wiring money to Egypt, not the ostensible reason for the subject news story, namely the indicted brother and his co-defendant traveling to Yemen, not Egypt.

Again, the instant motion to dismiss must be denied. Triable issue of fact exists whether the entire subject news story to the average viewer defames plaintiffs by implying that they are terrorists.

Accordingly, it is

ORDERED, that the motion of defendants FOX TELEVISON STATIONS, INC., FOX ENTERTAINMENT GROUP, FOX BROADCASTING COMPANY and LUKE FUNK for an order, pursuant to CPLR Rules 3211 (a) (1) and (7) and CPLR Rule 3212, dismissing the verified complaint of plaintiffs WALID ELHANAFI and MOHAMED ELHANAFI is denied; and it is further

ORDERED, that the cross-motion of plaintiffs WALID ELHANAFI and

MOHAMED ELHANAFI is granted to the extent that: the motion by defendants FOX TELEVISON STATIONS, INC., FOX ENTERTAINMENT GROUP, FOX BROADCASTING COMPANY and LUKE FUNK for an order, pursuant to CPLR Rules 3211 (a) (1) and (7) and CPLR Rule 3212, dismissing the verified complaint of plaintiffs WALID ELHANAFI and MOHAMED ELHANAFI is denied; and, plaintiffs WALID ELHANAFI and MOHAMED ELHANAFI need not file an amended complaint to specifically allege intent by defendants FOX TELEVISON STATIONS, INC., FOX ENTERTAINMENT GROUP, FOX BROADCASTING COMPANY and LUKE FUNK; and it is further

ORDERED that defendants FOX TELEVISON STATIONS, INC., FOX ENTERTAINMENT GROUP, FOX BROADCASTING COMPANY and LUKE FUNK [*7]

shall have thirty (30) days from receiving this decision and order with notice of entry to file and serve an answer to the complaint of plaintiffs WALID ELHANAFI and

MOHAMED ELHANAFI.

This constitutes the Decision and Order of the Court.

ENTER

________________________________HON. ARTHUR M. SCHACK

J. S. C.