142 A.D.3d 1062
N.Y. App. Div.2016Background
- Plaintiff Arcadio Rodriguez sued WPIX, LLC for defamation, alleging WPIX published news reports with his photograph identifying him as the suspect in an attempted rape.
- The final contested report stated another person had been arrested but still included Rodriguez’s photograph.
- WPIX moved under CPLR 3211(a)(1) and (7) to dismiss, asserting absolute privilege under Civil Rights Law § 74 for publishing official press releases.
- WPIX submitted two emails from the NYPD Deputy Commissioner for Public Information (DCPI): an initial wanted-for-questioning press release with an attached photo, and an update stating a named person had been arrested; WPIX also submitted employee affidavits and an FOIL response confirming the emails came from DCPI.
- The Supreme Court granted WPIX’s motion; Rodriguez appealed the dismissal insofar as against WPIX.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WPIX’s publication is privileged under Civil Rights Law § 74 | Rodriguez argued the publications were unprivileged and falsely identified him as the assailant | WPIX argued the reports were fair and true reports of NYPD press releases and thus absolutely privileged | Court held reports were privileged under § 74 and dismissed the claim against WPIX |
| Whether a police investigation/press release qualifies as an "official proceeding" under § 74 | Rodriguez contended the privilege did not apply | WPIX contended the NYPD investigation and DCPI press releases are "official proceedings" | Court held the police investigation/press releases constitute an "official proceeding" for § 74 |
| Whether privilege is defeated by NYPD’s erroneous photo identification | Rodriguez argued the misidentification removes privilege | WPIX argued § 74 protects publishers from liability for errors in official reports and relieves duty to investigate further | Court held the statutory privilege covers such errors and is not defeated by the NYPD’s mistake |
| Whether statements WPIX added from its victim interview are unprotected and actionable | Rodriguez implicitly relied on all reportedly published material being false | WPIX noted statements from its interview are not § 74-protected but plaintiff did not allege those statements were false apart from the photo attribution | Court found no pleaded falsity as to the non-privileged interview content and thus no actionable claim survived |
Key Cases Cited
- Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (explains standard when movant offers evidentiary proof on CPLR 3211(a)(7))
- Leon v. Martinez, 84 N.Y.2d 83 (procedural standard for construing pleadings on dismissal motions)
- Freeze Right Refrigeration & A.C. Servs. v. City of New York, 101 A.D.2d 175 (establishes police press releases/official investigations as within § 74 protection and that privilege covers publisher reliance on official errors)
- Alf v. Buffalo News, Inc., 21 N.Y.3d 988 (clarifies substantial accuracy standard for privilege and defamation)
- Bouchard v. Daily Gazette Co., 136 A.D.3d 1233 (application of substantial accuracy and privilege principles)