Plaintiff appeals from two separate orders of Special Term, Oneida County, granting dismissal of plaintiff’s complaint against both defendants.
Basically, the facts are as follows: Defendant-respondent, Frank V. Andrello, is a Councilman in the City of Utica. As such he made a statement to the citizens of Utica relative to a problem involving the city dump. He criticized the performance of work done by the plaintiff who is an Assistant Corporation Counsel in the employ of the City of Utica. Criticism pertained to plaintiff’s actions in his official capacity. The defendant-respondent, Utica Observer-Dispatch, Inc., published the statements of Councilman Andrello.
The complaint sets forth two causes of action. The first is against both defendants and sounds in libel, alleging that plaintiff was defamed in his profession and occupation as an attorney by certain statements uttered and published by the respective defendants. The alleged defamatory statements were contained in newspaper articles published in papers owned by the respondent Utica Observer-Dispatch, Inc., and a resolution of the Common Council of the City of Utica submitted by the respondent, Frank V. Andrello.
Plaintiff alleges that the alleged defamatory statements were uttered with actual malice or with a reckless disregard of the truth or falsity thereof, and that because of the oral and written publications he has been greatly injured in his profession, reputation and good standing in the community where he resides.
Plaintiff also alleged that subsequent to the publications by the respondent, Utica Observer-Dispatch, Inc., plaintiff demanded a retraction of the alleged libelous statements and that said defendant refused to retract, as a result of which plaintiff claims evidence of malice on the part of said defendant. Both motions to dismiss are essentially the same, in that the so-called libelous statements were made in the context of public debate on a matter of public interest. This being so, the statements, even if untrue, are privileged unless actual malice is shown.
The statements by the defendants must be construed as an attack on plaintiff’s ability to serve in his present position as
While Special Term dismissed plaintiff’s complaint on the grounds that the alleged defamatory statements were not libelous per se and that special damages had to be pleaded and proved, it is our belief that some of the statements are libelous per se, and must result in liability on the part of the defendants unless they are protected by the privilege of fair comment.
Beginning with New York Times Co. v. Sullivan (
The publications here definitely deal with matters of public interest, namely, an ordinance relative to a city dump, competitive bidding and a suit by the city administration against the Common Council and the plaintiff’s relation to these matters. The Court of Appeals in Trails West v. Wolff (32 N Y 2d 207, 215-216) stated: “The subject was certainly as newsworthy as the arrest of a person for distributing allegedly obscene magazines (Rosenbloom v. Metromedia,
In Shapvro v. Health Ins. Plan of Greater N. Y. (7 N Y 2d 56, 64) the court stated: “ Nowhere in plaintiff’s affidavit are there any evidentiary facts (as distinguished from mere conclusory allegations). Facts from which a jury could infer malice are not revealed * * * It was for plaintiff to show that he had facts available to prove such malice. He produced none. Suspicion, surmise and accusation are not enough * * *
The statements before us in no way show that the plaintiff has facts available to prove malice.
The orders appealed from must ,be affirmed, particularly in the light of the Supreme Court decision in Rosenbloom v. Metro-media, Inc. (
‘ ‘ We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous. # # #
“It is clear that there has emerged from our cases decided since New York Times the concept that the First Amendment’s impact upon state libel laws derives not so much from whether the plaintiff is a ‘ public official ’, ‘ public figure ’. or ‘ private individual ’, as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest.”
A careful reading of plaintiff’s affidvait indicates that there are no evidentiary facts alleged, as distinguished from mere conclusory allegations, from which a jury could infer malice. As stated in Shapiro v. Health Ins. Plan of Greater N. Y. (supra), “ suspicion, surmise and accusation are not enough.”
Plaintiff’s contention that he is claiming damage in his private capacity as a lawyer and, therefore, is not covered by the rule of New York Times and Rosenbloom cannot be sustained. In Garrison v. Louisiana (
We find that the other contentions of the plaintiff are without merit.
We conclude that (1) the statements published by the defendants are libelous per se, but (i2) that they are privileged and
The orders of Special Term should be affirmed.
Marsh, P. J., Wither, Simons and Goldman, JJ., concur.
Orders unanimously affirmed without costs.