The following e-filed documents, listed by NYSCEF document number (Motion 004) 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 101, 102, 103, 104, 109, 126, 132 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Defendant, Hearst Communications, Inc. (“Hearst”) moves this Court for summary judgment in this action for libel per se/slander per se and defamation per/se. See NYSCEF Doc. No. 77. This motion was transferred to this Court by the Honorable Eric Schumacher before whom this matter was pending. See NYSCEF Doc. No. 126. The action is based on the defendants’ use of a photograph and sketch of the plaintiff, David Sackler, while reporting on the OxyContin epidemic. The plaintiff is not the David Sackler of the Sackler family and Purdue Pharma. Hearst published a photograph of the plaintiff misidentifying him as the David Sackler of the Sackler family and Purdue Pharma in its Summer 2019 issue of “Town & Country” magazine. See NYSCEF Doc. No. 6
133-39. The plaintiff alleges that the defendant purchased or licensed the image of the plaintiff from Getty Images. See Id. 140. The plaintiff also alleges that Hearst “did no research, insufficient research or research that was not reasonably calculated to determine if the photograph of the plaintiff depicted the David Sackler of Purdue Pharma. See Id. 141. The defendant provides the affidavit of one of its employees who obtained the photograph of the plaintiff prior to publication of the Hearst article. See NYSCEF Doc. No. 87. The affidavit provides that the employee obtained the photograph of the plaintiff from “an online database of editorial photography maintained by Getty Images” and only saw photographs of what appeared to be the same person. See Id.
