
    Manuel P. Asensio et al., Appellants, v KPMG, LLP, Respondent, et al., Defendants.
    [740 NYS2d 862]
   Order, Supreme Court, New York County (Walter Tolub, J.), entered April 6, 2001, which, in this defamation action, granted defendant KPMG’s motion to dismiss the complaint as against it for failure to state a cause of action, unanimously affirmed, with costs.

The action should have been dismissed as against defendant KPMG upon the ground that KPMG was not responsible for publishing the alleged defamatory statement, the only ground asserted, since the statement appeared in the annual report prepared by KPMG’s client defendant Hemispherx, to which KPMG merely contributed a one-page independent auditor’s report free of any statement respecting plaintiffs. The motion court, however, correctly held that the alleged defamatory statement, mentioning that unnamed “short-sellers of Hemispherx stock” had been indicted for money laundering and stock manipulation, was not susceptible of defamatory meaning with reference to plaintiffs. The statement, read in context, constituted nothing more than background information to place defendant Hemispherx’s previously commenced lawsuit against plaintiffs, pending at the time the subject annual report was issued, in a perspective that would elicit investor approval; it cannot be reasonably construed to identify plaintiffs as criminal wrongdoers or even indictees (see, Aronson v Wiersma, 65 NY2d 592, 594). Concur—Nardelli, J.P., Sullivan, Ellerin, Lerner and Rubin, JJ.  