109 Misc.2d 904, Anderson v. WROC-TV

Citation109 Misc.2d 904, 441 N.Y.S.2d 220
Party NameAnderson v. WROC-TV
Case DateJuly 13, 1981
CourtSupreme Court of New York

Page 904

109 Misc.2d 904

441 N.Y.S.2d 220

Barbarra P. ANDERSON and Joy E. Brenon, Plaintiffs,

v.

WROC-TV, WHEC-TV, WOKR-TV, John Thompson, Dick Scheltz,

Frank Cafarell, Scott Harris, Lisa Rudolph, Frank Westover,

Ziff Davis Broadcasting of New York, Beni Broadcasting of

Rochester, Inc., the Post Corporation, Ronald Storm and the

Humane Society of Rochester and Monroe County, Defendants.

Supreme Court of New York

July 13, 1981.

[441 N.Y.S.2d 221] Antell & Harris, Rochester (Peter A. Harris, Rochester, of counsel), for plaintiffs.

Woods, Oviatt, Gilman, Sturman & Clarke, Rochester (John A. Titus, Rochester, of counsel), for defendants WHEC-TV, John Thompson, Dick Scheltz and Beni Broadcasting of Rochester, Inc.

Chamberlain, D'Amanda, Bauman, Chatman & Oppenheimer, Rochester (Louis D'Amanda, Rochester, of counsel), for defendants WROC-TV, Fran Cafarell, Scott Harris and Ziff Davis Broadcasting of New York.

[441 N.Y.S.2d 222] Lines, Wilkens, Osborn & Beck, Rochester (James A. Reed, Jr., Rochester, of counsel), for defendants WOKR-TV, Lisa Rudolph, Frank Westover and The Post Corporation.

Bayer & Smith, Rochester (Scott H. Smith, Rochester, of counsel), for defendants Ronald Storm and The Humane Society of Rochester and Monroe County.

DECISION

DAVID O. BOEHM, Justice.

In this case of apparent first impression in New York the plaintiffs are moving for summary judgment on the ground that certain affirmative defenses in the defendants' answers have no merit and should be stricken. Although the motion is brought under CPLR 3212, it appears that the application is actually one to dismiss defenses under CPLR 3211(b) and the motion is converted accordingly.

It appears that on the morning of September 9, 1980, defendant Ronald Storm, an investigator employed by defendant, The Humane Society of Rochester and Monroe County, in response to complaints about the plaintiffs, procured a search warrant authorizing him to enter plaintiffs' house and seize any animals "found to be in a confined, crowded or unhealthy condition or in unhealthy or unsanitary surroundings or ... not properly cared for or without sustenance, food and drink." Before executing the warrant, Storm contacted three television stations, defendants WROC-TV, WHEC-TV and WOKR-TV, informed them of the impending search and invited them to send newscasters and photographers to accompany him inside the premises. When he appeared at the plaintiffs' house at 89 Arch Street in Rochester, he was met by several television photographers and reporters who accompanied him into the plaintiffs' home. There they filmed the interior and the story was broadcast on the evening news shows of WROC-TV and WOKR-TV.

The complaint and plaintiffs' bill of particulars allege that plaintiff, Joy E. Brenon, asked the television people to stay out of her house but they entered notwithstanding her instructions.

Thereafter plaintiffs commenced this action. Damages are sought against defendants Ronald Storm and The Humane Society of Rochester and Monroe County, claiming that they abused the search warrant and against the three television stations and their named individual employees for trespass. 1

The answers of the television stations and their employees have raised a number of affirmative defenses which are the subject of the present motion.

The defenses moved against are those set forth in paragraph "SECOND" of the answer of WOKR-TV which claims as a defense that as television reporters and photographers, they have an absolute privilege; paragraphs "FIRST", "SECOND" and "THIRD" of the answer of WROC-TV which respectively allege that the public's right to access to information of public interest made their conduct reasonable, that the entry was constitutionally protected, and that based upon custom and usage and the social necessity of the need to assure access to information in matters of public interest, defendants had the implied consent of the plaintiffs; and lastly, paragraphs "SECOND" and "FOURTH" of the answer of WHEC-TV, which allege respectively that plaintiffs' premises were open to the public or, through custom and usage, [441 N.Y.S.2d 223] were established as public areas and, therefore, its conduct was nontrespassory and privileged, and that the entry was nontrespassory and privileged because it was made to observe and record a genuinely newsworthy event which made the plaintiff's premises open to the public by custom and practice.

In opposing plaintiffs' motion, defendants rely very heavily upon the Florida case of Florida Pub. Co. v. Fletcher, Fla., 340 So.2d 914, cert. den. 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245. That case turns on the principle that consent, whether express or implied, is a defense to an action for trespass and that consent may be implied from custom, usage or conduct. We agree with the law as stated by the court, but not with the conclusion it draws therefrom, at least with respect to the issue before it.

In that case fire damaged the home of the respondent while she was away visiting a friend and her 17-year-old daughter died. The fire marshall and police sergeant entered the house to make an official investigation and invited the news media to accompany them, which was done through an open door and without objection. Mrs. Fletcher first learned of her daughter's death by reading a newspaper story and viewing a photograph of her dead daughter's silhouette left on the floor after her body was removed. She brought an action against...

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9 practice notes
  • 111 Misc.2d 928, Delan v. CBS, Inc.
    • United States
    • December 9, 1981
    ...they argue, would "border upon prior restraint". That same argument was presented to the court in Anderson v. WROC-TV, 109 Misc.2d 904, 909, 441 N.Y.S.2d 220 in which the court responded: "While the argument appears persuasive on the surface, it does not, on deliberation, hol......
  • 526 N.W.2d 402 (Minn.App. 1995), C4-94-1629, Copeland v. Hubbard Broadcasting, Inc.
    • United States
    • Minnesota Court of Appeals of Minnesota
    • January 24, 1995
    ...newsgathering. See, e.g., Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 1480, 232 Cal.Rptr. 668 (1986); Anderson v. WROC-TV, 109 Misc.2d 904, 441 N.Y.S.2d 220, 223 (N.Y.App.Div.1981); Ayeni v. CBS Inc., 848 F.Supp. 362, 368 (E.D.N.Y.1994); see also Chad E. Milton et al., Emergin......
  • 173 Misc.2d 783, 1997-97,471, Butler v. Ratner
    • United States
    • July 28, 1997
    ...953] (Second Dept., 1968); Nickerson v. TeWinkle, 161 App.Div.2d 1123 [556 N.Y.S.2d 414] (Fourth Dept., 1990); Anderson v. WROC-TV, 109 Misc.2d 904 [441 N.Y.S.2d 220] (Monroe 1981). Thus, in MacKennan, supra, at 679, 291 N.Y.S.2d 953, the Court held: "We subscribe to the principle that......
  • 343 N.W.2d 826 (Wis.App. 1983), 82-1753, Prahl v. Brosamle
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • November 23, 1983
    ...rely on do not touch those expectations, they have not shown facts from which a consent to entry can be inferred. Anderson v. WROC-TV, 441 N.Y.S.2d 220 (Sup. Ct. 1981), reached a comparable result for essentially the same reason. In that case, television newscasters were sued for trespass. ......
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9 cases
  • 111 Misc.2d 928, Delan v. CBS, Inc.
    • United States
    • December 9, 1981
    ...they argue, would "border upon prior restraint". That same argument was presented to the court in Anderson v. WROC-TV, 109 Misc.2d 904, 909, 441 N.Y.S.2d 220 in which the court responded: "While the argument appears persuasive on the surface, it does not, on deliberation, hol......
  • 526 N.W.2d 402 (Minn.App. 1995), C4-94-1629, Copeland v. Hubbard Broadcasting, Inc.
    • United States
    • Minnesota Court of Appeals of Minnesota
    • January 24, 1995
    ...newsgathering. See, e.g., Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 1480, 232 Cal.Rptr. 668 (1986); Anderson v. WROC-TV, 109 Misc.2d 904, 441 N.Y.S.2d 220, 223 (N.Y.App.Div.1981); Ayeni v. CBS Inc., 848 F.Supp. 362, 368 (E.D.N.Y.1994); see also Chad E. Milton et al., Emergin......
  • 173 Misc.2d 783, 1997-97,471, Butler v. Ratner
    • United States
    • July 28, 1997
    ...953] (Second Dept., 1968); Nickerson v. TeWinkle, 161 App.Div.2d 1123 [556 N.Y.S.2d 414] (Fourth Dept., 1990); Anderson v. WROC-TV, 109 Misc.2d 904 [441 N.Y.S.2d 220] (Monroe 1981). Thus, in MacKennan, supra, at 679, 291 N.Y.S.2d 953, the Court held: "We subscribe to the principle that......
  • 343 N.W.2d 826 (Wis.App. 1983), 82-1753, Prahl v. Brosamle
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • November 23, 1983
    ...rely on do not touch those expectations, they have not shown facts from which a consent to entry can be inferred. Anderson v. WROC-TV, 441 N.Y.S.2d 220 (Sup. Ct. 1981), reached a comparable result for essentially the same reason. In that case, television newscasters were sued for trespass. ......
  • Request a trial to view additional results