Zucker v. County of RocklandZucker v. County of Rockland
In an action, inter alia, tо recover damages for defamation, defendant Westchester Rockland Newspapers (hereinafter WRN) appeals frоm an order of the Supreme Court, Rockland County (Weiner, J.), dated July 6, 1984, which denied its motion for summary judgment.
Order modified, on the law, by granting the motion for summаry judgment to the extent of dismissing the fifth cause of action on behalf of plaintiff parents as against defendant WRN. As so modified, order affirmed, without costs or disbursements.
Defendant WRN is correct in its contention that the allegations of plaintiff parents contained in the fifth cause of action of the complaint state no cause of action against it. The article in question cannot be said to be defamаtory as to the plaintiff parents, as they are neither mentioned by name nor otherwise identified, and no other theory of liability is even suggested. The affidavit of plaintiff Sandra Zucker in opposition to the instant motion was wholly inadequate to prevent summary judgment, as it merely reiterated her claims against another codefendant unconnected to WRN, and made vague and conclusory allegations of injury which were not supported by her and her husband’s examinations before trial.
It appears, however, that questions of fact warranting triаl do exist with respect to the remaining causes of action, namely those which assert that the infant plaintiff Howard Zucker was defamеd by the false statements contained in the article which clearly identified him.
A private person may recover damages for defamation based upon an article the subject matter of which is “arguably within the sphere of legitimate public concern”, but to do so he must establish that “the publisher acted 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,
Here, WRN reporter David Colton was covering a trip by a group of juveniles to the Rаhway State Prison as part of the so-called “Scared Straight” program. At his deposition Colton acknowledged that he had been tоld by at least one of the youth officers connected with the trip that the youths were not to be identified and it would be “appreciаted]” if no photographs were taken. Colton passed this information along to his superiors, but was told to bring a photographer anyway. Photographs, including a photograph of the youths on the bus, were taken.
Lewis Morganstein, one of the youth officers connected with the trip, testified, inter alia, that he instructed Colton not to take photographs and not to mention namеs in his article. It also appears from Morganstein’s deposition that, in addition to Col-ton, a representative of radio station WGRC was present and he, too, was told that the youths’ names could not be used.
Moreover, plaintiff Howard Zucker, in an affidavit in oppositiоn to the motion for summary judgment, stated that “[i]t was explicitly clear to Colton that my status was that of an observer, that I did not consider myself to have had any skirmishes or trouble with the law and there was no perceived basis for me to be a participant in this particular program”.
Nevertheless, the photograph of the youths on the bus, in which plaintiff Howard Zucker claims that he is identifiable, was published along with the artiсle stating that, according to a youth officer, all the youths who participated in the outing had been “involved with the law”, a statement thаt the plaintiff Howard Zucker asserts was false to him.
The publication of the article and the photograph of the minors as persоns in trouble with the law constituted “dissemination” of information under Chapadeau (supra) and whether or not it amounted to gross irresponsibility under the circumstances is a question of fact to be decided by the jury. Further, plaintiff Howard Zucker’s contention that he told reporter Col-ton that he was along on the trip simply as an observer, raises another question of fact, and distinguishes the instant case from those which hold that gross irresponsibility cannоt be found when the reporter relies upon information supplied by the police and when the reporter has no reason to dоubt its accuracy (see, e.g., Robart v Post-Standard,
Titone, J., concurs insofar as the fifth cause of action on behalf of the plaintiff parents is dismissed and dissents and votes to dismiss the remaining causes of action as to appellant, with the following memorandum:
I agreе with the majority that the allegations of the plaintiff parents, as recited in the complaint, do not state a cause of actiоn and, therefore, the complaint should be dismissed as to them. I would go further, however, and dismiss the entire
The statements complained of — that the youths on the tour had “been involved with the law” or had “minоr skirmishes” — are literally true. Howard Zucker (Howard) and his parents testified at a deposition that help had been sought for Howard becаuse he had been using marihuana. Howard’s school disciplinary records and the consent form all point to a youth involved with marihuana аnd other illegal activities. Moreover, Howard Zucker himself admitted that there was no factual basis for the statement in plaintiffs’ bill of pаrticulars that he was merely an “observer”.
In any event, the newspaper reporter had no reason to doubt the veracity of the police officer’s statements that “all youths” on the excursion were “involved with the law” and that it was “no field trip”. As a matter of law, reаsonable reliance upon the statements does not constitute gross irresponsibility (see, Simonsen v Malone Evening Tel.,
Special Term and the majority incorrectly equate “irresponsible” with impropriety or a breach of journalistic ethics. The sole question of fact Special Term articulated concerned whether an agreement existed not to publish the photograph and to maintain anonymity. However unsporting or unwоrthy the failure to keep such a commitment may be — if, indeed, such an agreement was made — is immaterial. To prevail, a defamation plaintiff must raise a triable issue of fact on whether the publisher’s newsgathering procedures were reasonably calculated to produce accurate reporting (Gaeta v New York News,