710 N.Y.S.2d 41 | N.Y. App. Div. | 2000
OPINION OF THE COURT
It is undisputed that two New York Times articles written by its reporter, Susan Antilla, and published on October 19, 1993 and January 14, 1994 were false and defamatory in that the first article, in pertinent part, falsely described plaintiff as “a West Coast broker who was recently sued by the SEC and by private investors contending stock fraud,” while the second falsely described him as “a stock promoter * * * who was fined for securities fraud in Canada in 1976.” The first and second causes of action for libel are based on those articles.
As admitted by defendant reporter, the misstatement in the first article was based upon “a mistake made in comprehending” a Wall Street Journal story which mentioned plaintiff and the misstatement in the second was based upon her misreading of another article on the Bloomberg Business News wire service. It is also undisputed that, after the first article, plaintiff phoned Ms. Antilla to inform her that the Securities and Exchange Commission (SEC) had not sued him. A correction to that effect was published six days later. A similar correction to the effect that plaintiff had not been fined for securities fraud in Canada in 1976 was published, at plaintiff’s instance, two days after the second article.
Plaintiff’s third cause of action is based on a January 13, 1994 Orange County Register article, entitled, “Additional Deals Involving Khan Coming to Light.” This article included a subheading which stated, “SEC documents say the ICN shareholder, who is trying to oust its board, did favors for several of his customers.” The article itself constituted an edited version of Ms. Antilla’s January 12th Times article.
Defendants do not dispute that the two Times articles were false and defamatory, the only issue being whether the articles were published with actual malice. This appeal arises from the denial of that part of defendants’ motion for summary judgment seeking dismissal of the first three causes of action for libel as against the Times and Ms. Antilla.
Based upon the opinion of plaintiffs expert that defendants ignored the basic tenets of journalism: accuracy and fairness, and had acted with reckless disregard for the truth, as well as the fact that, as a matter of “objective reality,” Ms. Antilla misstated her sources, the court denied defendants’ motion, holding that a jury could find that defendants acted with “actual malice.” In this regard, the court distinguished the facts of the instant case from those in Mahoney v Adirondack Publ. Co. (71 NY2d 31), which dealt with a reporter’s eyewitness account of a football game which differed with some of the other witnesses’ perceptions of the same events, in which “the court’s dismissal of the libel claim was predicated on the lack of an objective reality in the source material — exactly the opposite situation as presented herein.”
In so holding, however, the court mistakenly applied an objective standard of gross irresponsibility, which is only applicable to private figures, rather than applying the subjective actual malice standard applicable to a “limited-purpose public figure” such as plaintiff. Inasmuch as these two standards are quite different and since the record contains no evidence that Antilla could not have misunderstood the source of her information as asserted, defendants are entitled to judgment as a matter of law.
While the court correctly defined the constitutional malice standard as set forth in New York Times Co. v Sullivan (supra), it then proceeded to dilute that standard by finding it comparable to the “gross irresponsibility” standard applicable to private persons as set forth by the Court of Appeals in Chapadeau v Utica Observer-Dispatch (38 NY2d 196). Whereas the objective standards of journalism might be relevant to a determination whether defendants satisfied their duty of care under Chapadeau, such evidence is insufficient to establish reckless disregard under the constitutional standard of actual malice.
Where plaintiff is a public figure, he must prove, “by clear and convincing evidence,” that the published material is false
The constitutional malice standard is to be distinguished from the standard articulated by New York courts applicable to private persons, which permits recovery when a defendant acts “in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” (Chapadeau v Utica Observer-Dispatch, supra, at 199). The Chapadeau standard is a “less demanding” standard, and focuses on the journalist’s satisfaction of objective professional standards, whereas the actual malice test focuses on defendants’ subjective state of mind (see, e.g., Immuno AG. v Moor-Jankowski, 145 AD2d 114, 125, affd 77 NY2d 235).
In addition to mistakenly combining the two standards in setting forth the definition of malice, the IAS Court’s analysis of plaintiffs evidence demonstrates that it did not hold plaintiff to his burden of demonstrating with “convincing clarity” that a reasonable fact finder could find actual malice (Herbert v Lando, 781 F2d 298, 305, cert denied 476 US 1182). The court suggested that a jury could infer “actual malice” from facts showing that Ms. Antilla did not undertake reasonable steps to discover her errors, but an analysis of whether defendant’s actions measure up to reasonable and/or professional standards is irrelevant to the inquiry whether she actually doubted the truth of her assertions.
Contrary to plaintiff-respondent’s argument that the usual summary judgment rules are applicable, summary judgment is particularly favored by New York courts in libel cases (see,
The facts of Mahoney v Adirondack Publ. Co. (71 NY2d 31, supra) are apposite and the IAS Court’s attempt to distinguish that case was misplaced. In Mahoney (supra), a reporter misheard a number of oral statements by a high school football coach during a losing game, and reported that plaintiff had told his quarterback “ ‘ “Come on, get your head out of your &!(!!(&.’”” when the coach actually had merely sought to encourage his quarterback by saying “ ‘Get your head up’ ” or “ ‘Keep your head up.’ ” (Supra, at 37, 38.) Plaintiff alleged that a jury could reasonably infer “actual malice” from the reporter’s error, because it was undisputed that he had misstated what the plaintiff had said and others in the same proximity had heard correctly what plaintiff said. While the Third Department had accepted this inference, the Court of Appeals disagreed, stating: “The inference depends for its validity on the premise that the eyewitness could not have perceived and understood anything but the truth. Thus, in reporting something else, the observer must have departed from the truth by design. The underlying premise is valid, however, only if the events were unambiguous and the setting was such that the observer could not have misperceived those events. Such conditions, however, cannot simply be assumed; as the proponent of the inference and the bearer of the burden of proof of actual malice, the plaintiff must demonstrate that they exist. No such showing was made here” (supra, at 40).
Whereas Mahoney involved the publication of misinformation based upon the reporter’s misperception of what he heard, the instant case involves a reporter’s misreading of a written report. The fact that there was conclusive evidence that the reporter’s description of the coach’s statement was false and
Moreover, as in Mahoney (supra), the evidence supports the conclusion that the false information was more the product of Ms. Antilla’s misperception than fabrication. In Mahoney (supra, at 37, 38), the reporter’s account, “ ‘ “[G]et your head out of your &!(!!(&.” ’ ” was similar to plaintiffs account, “ ‘Get your head up.’ ” In the instant case, a comparison of Ms. Antilla’s erroneous accounts with the actual language of the sources she relied on suggests “that the falsity was more the product of misperception than fabrication.” (Supra, at 40.)
The cases cited by plaintiff for the proposition that summary judgment is disfavored where credibility is at issue (see, e.g., Dauman Displays v Masturzo, 168 AD2d 204, lv dismissed 77 NY2d 939; Jastrzebski v North Shore School Dist., 223 AD2d 677, 678, affd 88 NY2d 946) all come from personal injury or commercial law and have little relevance to this First Amendment libel case. However, where, as here, First Amendment claims are made, mere assertions “ ‘that the jury might, and legally could, disbelieve the defendant’s denial * * * of legal malice’ ” are not enough. (Contemporary Mission v New York Times Co., 842 F2d 612, 621-622, cert denied sub nom. O’Reilly v New York Times Co., 488 US 856 [citation omitted].)
Furthermore, the evidence that Ms. Antilla did not contact plaintiff with respect to the second article, even after plaintiff corrected her first mistake and allegedly obtained from her a promise that she would verify information with him in the future, is insufficient to create a triable issue of fact as to whether she recklessly disregarded the truth with respect to the second article. Since she obtained her information from a reputable news source and had no reason to doubt the veracity of information in the nature of historical fact, she had no reason to contact plaintiff. She also had no reason to question the accuracy of the Bloomberg report that she misread, since she recently had learned of other alleged misdeeds by plaintiff.
In Sweeney v Prisoners’ Legal Servs. (84 NY2d 786, supra), where plaintiff correction officer was defamed by allegations
In light of the foregoing, the IAS Court erred in denying defendants summary judgment on plaintiffs first two causes of action for libel and those causes of action should have been dismissed.
Plaintiffs third cause of action for libel based upon the Orange County Register article should have also been dismissed since it is based on allegedly defamatory statements that simply cannot be attributed to defendants. Plaintiffs complaint alleges that defendants’ liability is predicated upon the fact that the Orange County Register, a California newspaper, had a “contractual or other relationship” with the Times and is a subscriber of the Times syndication service. As defendants point out, the allegedly libelous subheading never appeared in the Times and there is no evidence that Ms. Antilla or anyone else employed by the Times participated in creating this new subheading. It is axiomatic that a defendant cannot be held liable for a libelous statement that it did not write or publish (Karaduman v Newsday, Inc., 51 NY2d 531). Defendants presented unrebutted evidence that the Register had simply pulled up the Times article from its wire service and unilaterally adapted the article to suit its own editorial purposes. This independent adaptation included the insertion of the allegedly defamatory subheading.
Accordingly, the order of the Supreme Court, New York County (Diane Lebedeff, J.), entered October 16, 1998, which, to the extent appealed from as limited by the briefs, denied
Rosenberger, J. P., Williams, Buckley and Friedman, JJ., concur.
Order, Supreme Court, New York County, entered October 16, 1998, which, to the extent appealed from as limited by the briefs, denied defendants-appellants’ motion for summary judgment dismissing the first, second and third causes of action for libel as against them, reversed, on the law, with costs, defendants-appellants’ motion granted and the first, second and third causes of action in the complaint dismissed as to those defendants.
