Beary v. West Publishing Co.

• Decision Date: 23 May 1985
• Docket Number: D,No. 927,927
• Citation: 763 F.2d 66
• Parties: 11 Media L. Rep. 2114 Patrick BEARY, Plaintiff-Appellant, v. WEST PUBLISHING COMPANY, Defendant-Appellee. ocket 84-7965.
• Court: U.S. Court of Appeals — Second Circuit

Page 66

763 F.2d 66

11 Media L. Rep. 2114

Patrick BEARY, Plaintiff-Appellant, v. WEST PUBLISHING COMPANY, Defendant-Appellee.

No. 927, Docket 84-7965.

United States Court of Appeals Second Circuit.

Argued April 11, 1985.

Decided May 23, 1985.

Patrick Beary, Jamaica, N.Y., pro se.

Laura B. Hoguet, New York City, Vance K. Opperman and James E. Schatz, Opperman & Paquin, Minneapolis, Mn., (White & Case, New York City, of counsel), for defendant-appellee.

Before MANSFIELD, KEARSE and PRATT, Circuit Judges.

MANSFIELD, Circuit Judge.

Patrick Beary, an attorney, appeals from an order and judgment of the Eastern District of New York, I. Leo Glasser, Judge, granting defendant's motion for summary judgment dismissing Beary's diversity libel action for $5,000,000 damages based on defendant's publication of an opinion authored by Judge William D. Friedmann of the Civil Court of the City of New York. We affirm.

The alleged libelous decision giving rise to the present federal suit was rendered in Beary's favor in a Civil Court action by Estates Roofing Co., Inc., against Beary for a balance of $656 due on a home improvement contract for roof repairs to his house. Upon Beary's motion at the close of the plaintiff's evidence in that case Judge Friedmann dismissed the suit on the ground that the roofer who performed the work was not licensed in accordance with New York City's Administrative Code, Sec. 773-11.0. In his opinion, as filed and forwarded to the New York State Reporter, Judge Friedmann noted that Beary, an attorney, had correctly stated the law to be that a person not properly licensed as a roofer could not collect the balance of the agreed-upon price for roof repairs and that "although the result appears to be unjust the law is the law." Judge Friedmann further stated that Beary did "not contend that the repairs were not completed in a work manlike [sic] manner" and that the statutory requirement that the roofer possess a proper license "cannot be relaxed although a party should be paid for his completed and satisfactory work as should the palintiff [sic] [Estate Roofing Co., Inc.] before this Court."

The Friedmann opinion was forwarded to the New York State Reporter, which sent it to West Publishing Company ("West"), the defendant in this action, which on August 24, 1983, published it as received (with the correction of a single typographical error) in its paperbound Advance Sheet edition. Beary then moved to vacate Judge Friedmann's opinion and asked West to withhold publication of the opinion in bound volumes, contending that it gratuitously portrayed him, a lawyer, in an unfavorable light as a "dead beat" who had used a legal technicality to avoid a payment due. He claimed that, if Judge Friedmann had not decided the case on the legal ground, he would have shown that Estates Roofing Co. had been guilty of poor workmanship.

Judge Friedmann denied Beary's motion to vacate the opinion but requested the New York State Reporter to eliminate Beary's name from the opinion, which was done by substituting "Homeowner" for "Beary." By letter dated November 7, 1983, the New York State Reporter advised West of Judge Friedmann's order. Thereafter, both the official bound New York State report, see 121 Misc.2d 279, and the bound West report, see 464 N.Y.S.2d 951, published the opinion with "Homeowner" as the defendant and without any mention of Beary.

Notwithstanding this background, on August 6, 1984, Beary filed the present federal action claiming that West's paperback Advance Sheet copy of the Friedmann opinion was libelous and defamatory since it Judge Glasser in open court granted West's motion for summary judgment on the grounds that Judge Friedmann's opinion was not defamatory and that in any event West was "absolutely privileged under Section 74 of the Civil Rights Law." From this decision Beary appeals.

falsely and maliciously represented him, a lawyer, as "conniving, contemptible, a swindler, trickster, deceiver, a 'deadbeat' and a 'shyster' and a person to be avoided, shunned and distrusted, that by reason of his 'knowledge of the law,' Beary tricked and deceived the Estates Roofing Company out of hundreds of dollars". It alleged that there was no factual basis for the opinion's statements that the satisfactory completion of the roofing work was undisputed and that the roofer should be paid for his completed and satisfactory work. The complaint further alleged that West was negligent in publishing the Advance Sheet edition of the opinion.

DISCUSSION

Beary's initial contention, that West by filing an answer waived its right to move to dismiss the complaint or, in the alternative, for summary judgment must be rejected out of hand as frivolous. Although Fed.R.Civ.P. 12(b) encourages the responsive pleader to file a motion to dismiss before pleading, nothing in the rule prohibits the filing of a motion to dismiss with an answer and Fed.R.Civ.P. 56(b) expressly authorizes a party to file a motion for summary judgment "at any time." A plaintiff is not prejudiced by the filing of such motions simultaneously with an answer, as was done here, and that very filing puts the plaintiff on notice that the defendant is not waiving its right to assert the motions.

We move then to the central issue, which is whether Sec. 74 of the New York Civil Rights Law provides an absolute defense to West. Section 74 provides in pertinent part:

"A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published."

Upon its face the statute confers an absolute immunity, regardless of proof of malice or negligence, upon any person who publishes a "fair and true report" of a judicial opinion. The purpose of the statute in part is to implement the public policy in favor of encouraging publication and dissemination of judicial decisions and proceedings as being in the public interest. See Lowenschuss v. West Publishing Co., 542 F.2d 180, 185-86 (3rd Cir.1976); Garfield v. Palmieri, 297 F.2d 526, 527 (2d Cir.), cert. denied, 369 U.S. 871, 82 S.Ct. 1139, 8 L.Ed.2d 275 (1962). See also the concurring and dissenting opinion of Justices Mollen and Titone in Gurda v. Orange County Publications Div. of Ottaway Newspapers, Inc., 81 A.D.2d 120, 439 N.Y.S.2d 417 (2d Dept.1981), which on appeal was adopted by the New York Court of Appeals as the basis for its reversal, 56 N.Y.2d 705, 436 N.E.2d 1326, 451 N.Y.S.2d 724 (1982). Justices Mollen and Titone stated:

"The purpose of providing immunity to fair and true...