Jacobowitz v. Posner

• Decision Date: 19 June 1967
• Parties: Milton E. JACOBOWITZ, Appellant, v. Herbert A. POSNER, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 670

282 N.Y.S.2d 670

28 A.D.2d 706

Milton E. JACOBOWITZ, Appellant, v. Herbert A. POSNER, Respondent, et al., Defendants.

Supreme Court of New York, Appellate Division,

Second Department.

June 19, 1967.

In an action to recover damages for libel, (1) order of the Supreme Court, Queens County, entered December 2, 1966, which denied plaintiff's motion pursuant to CPLR 3211, subdivision (b) to dismiss certain affirmative defenses, on the ground that no defenses are stated therein, and granted respondent's cross motion for summary judgment pursuant to CPLR 3212, and (2) the judgment entered thereon affirmed, with a single bill of $20 costs and disbursements. No opinion.

BRENNAN, HOPKINS, MUNDER and NOLAN, JJ., concur.

BELDOCK, P.J., dissents in part and votes to modify the order so as to deny respondent's cross motion for summary judgment and to reverse the judgment, with the following memorandum:

Appellant, an attorney and the duly elected Democratic Party leader of the Rockaways, and respondent, Herbert A. Posner, an accountant and attorney, were opponents in a primary campaign for the election of the nominee of the regular Democratic Party of the Rockaways for the office of Assemblyman from the 19th Assembly District of Queens County. During the campaign, respondent allegedly made statements about appellant in some campaign literature which was distributed to the public. These statements were alleged to be false, libelous and defamatory, and composed, published and distributed maliciously, wantonly, carelessly and recklessly, to appellant's substantial damage. Respondent's answer to the complaint, in addition to denials, contained affirmative defenses, alleging, Inter alia, that the defamatory statements (a) involved matters of public interest and concern, (b) were made in good faith, in the belief that they were true, and without malice, (c) constituted fair comment and (d) were published in the exercise of respondent's constitutional right of free speech and free press. While I agree that, by becoming a candidate for public office, appellant subjected himself to public scrutiny and his qualifications became matters of public concern (cf. Gilberg v. Goffi, 21 A.D.2d 517, 251 N.Y.S.2d 823; Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359), I am nevertheless of the opinion that some of the aspects of his conduct which were calumniated by respondent are sufficiently within the periphery of that 'gray area' of official and...