Feche v. Viacom International, Inc. , 649 N.Y.S.2d 782 ( 1996 )

Order, Supreme Court, New York County (Carol Arber, J.), entered July 17, 1995, which, inter alia, granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

We agree with the IAS Court that the remark, "whores”, made by defendant "Kennedy” during a segment produced and broadcast by the other defendants, was not " 'of and concerning’ ” plaintiffs, and is therefore nonactionable as libel (Springer v Viking Press, 60 NY2d 916, 917). An average viewer would not, taking into account the context in which the remark was uttered, perceive that "Kennedy” was making a factual statement about plaintiffs, but rather was indulging in hyperbole and protected opinion about the fictional characters that plaintiffs were portraying (see, Greenbelt Publ. Assn. v Bresler, 398 US 6; Immuno AG. v Moor-Jankowski, 77 NY2d 235, cert denied 500 US 954; Pring v Penthouse Intl., 695 F2d 438, cert denied 462 US 1132). Concur—Wallach, J. P., Rubin, Nardelli, Williams and Andrias, JJ.