Fugazy v. Time, Inc.

¶1I dissent only insofar as the majority sustains the first complete defense. I would strike this defense as insufficient on its face and give leave to the defendants to replead. I agree, of course, that as a general principle, “the publication of false and defamatory matter of another is absolutely privileged if the other consents thereto ” (Restatement, Torts, § 583-; see, also, Teichner v. Bellan, 7 A D 2d 247, 251; Schoepflin v. Coffey, 162 N. Y. 12, 20). But it does not appear that this first defense is pleaded on any such theory. It is not alleged in so many words that the plaintiff did expressly or impliedly give consent to the publication of the particular libelous matter, including the defamatory statements of D’Amato; nor, in my opinion, are the plaintiff’s actions, conduct and statements, as alleged, sufficient to show that he did invite and impliedly consent to this defamation.