Bee Publications, Inc. v. Cheektowaga Times, Inc.

• Decision Date: 01 March 1985
• Citation: 107 A.D.2d 382,485 N.Y.S.2d 885
• Parties: BEE PUBLICATIONS, INC. and George J. Measer, Respondents, v. The CHEEKTOWAGA TIMES, INC., Willard C. Allis and Robert A. Gemerek, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 885

485 N.Y.S.2d 885

107 A.D.2d 382

BEE PUBLICATIONS, INC. and George J. Measer, Respondents, v. The CHEEKTOWAGA TIMES, INC., Willard C. Allis and Robert A.

Gemerek, Appellants.

Supreme Court, Appellate Division,

Fourth Department.

March 1, 1985.

Magavern & Magavern, Buffalo, (Michael Beilewech, Jr., Buffalo, of counsel), for appellants.

Stamm, Keefe & Murray, Williamsville (Gregory Stamm, Willamsville, of counsel), for respondents.

Before HANCOCK, J.P., and DOERR, DENMAN, GREEN and O'DONNELL, JJ.

HANCOCK, Justice Presiding:

To prevail in a libel action against media defendants, a plaintiff who qualifies as a public figure (see Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094) must show: (1) that the allegedly defamatory words were "of and concerning" him (see Gross v. Cantor, 270 N.Y. 93, 96, 200 N.E. 592); (2) that they were likely to be understood as defamatory by the ordinary person (see James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834); (3) that the words were false (see Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456), and (4) that they were published with "actual malice" (Rinaldi v. Viking Penguin, 52 N.Y.2d 422, 438 N.Y.S.2d 496, 420 N.E.2d 377). Special Term has granted partial summary judgment to plaintiffs against two of three defendants on the issue of liability. Contrary to plaintiffs' contentions on appeal, we find that the record presents an issue of fact for the jury on each of the foregoing points (see CPLR 3212). Because there must be a reversal and a trial, we comment on some of the questions raised.

Plaintiffs, Bee Publications, Inc., the publisher of the Cheektowaga Bee, a local weekly newspaper, and George Measer, its president and majority shareholder, allege that they were defamed by a letter to the editor published on January 28, 1982 and February 4, 1982 in the Cheektowaga Times, a long-established local weekly published by defendant Cheektowaga Times, Inc. The letter, written by defendant Gemerek, ¹ concerned the decision of the Cheektowaga Town Board to replace the Times with the Bee as the official paper for the publication of town notices for 1982. In his letter Gemerek stated in part:

When a clear-cut mandate, based on a 3 to 1 subscription differential, is blatantly ignored, one searches for reasons for such an inexcusable violation of the representative voting process.

While the real intent behind this sham can only be speculated, suspicion of kickbacks, pay-offs and promises of future political endorsements immediately come to mind.

In an examination before trial, Measer testified that Bee Publications, Inc., a corporation based in Amherst, a neighboring town, had been in the publishing business for 25 years. It published eight newspapers in the suburban Buffalo area, including the Bee, a weekly serving Cheektowaga but having a considerably smaller circulation than the competing Times. Measer testified that his name appeared as publisher on the masthead of the Bee, that he had for years been active in the local affairs of Amherst, that he had held prominent positions in national publishers' associations and that his name and photograph had appeared in print "many, many times". Bee Publications, Inc., he said, was "synonymous George Measer". In December, 1981, Measer by letter requested the Cheektowaga Town Board to designate the Bee as the town paper for 1982.

From the examination before trial testimony of defendant Allis, now deceased and formerly editor of the Cheektowaga Times, it appears that the Times had published the town notices for 10 or 15 years. According to Allis, the Times received a number of letters from readers protesting the Town Board's action in designating the Bee which, he said, had occasioned considerable opposition including a petition campaign supporting redesignation of the Times. One of the letters was from Gemerek. Allis ran it twice: once on page one with the heading, "Town Board Blasted for Ousting Times", and once on the editorial page. As of the time of publication, Allis conceded, he had no evidence that plaintiffs had engaged in kickbacks, pay-offs or promises of future political endorsements and he "doubtthat they had. In contradictory testimony he later said: "I wouldn't say that I doubted it at all. I had no opinion on the matter * * *. I said I had no conclusions on the matter whatsoever." He said that by publishing Gemerek's letter he did not "vouch" for its truth and considered it to be "man's own opinion".

Special Term, in granting plaintiffs' motion for summary judgment on the issue of liability against defendants Allis and Cheektowaga Times, Inc., held that "there is no doubt that the defamatory letter to the editor in question referred to the plaintiffs" and that defendant Allis' admissions that "he had no knowledge of kickbacks or payoffs" and that he "doubted that there were kickbacks or payoffs" were sufficient to establish malice as a matter of law. In a supplemental decision the court held that the statements in issue were libelous per se.

I

For there to be a recovery in libel it must be established that the defamation was "of and concerning the plaintiff" (Gross v. Cantor, 270 N.Y. 93, 96, 200 N.E. 592, supra; see 34 NY Jur, Libel and Slander, § 55; Prosser and Keeton, Torts § 111, p. 783 ). The burden, it has been held, "is not a light one" (Geisler v. Petrocelli, 2nd Cir., 616 F.2d 636, 639, quoting Fetler v. Houghton Mifflin Co., 2nd Cir., 364 F.2d 650, 653; Handelman v. Hustler Magazine, Inc., 469 F.Supp. 1048, 1050). A plaintiff need not, of course, be named in the publication but, if, as is the case here, he is not, he must sustain the burden of pleading and proving that the defamatory meaning attached to him (Prosser and Keeton, Torts § 111, p. 783 ). The reference to a plaintiff may be indirect and may be shown by extrinsic facts, as, for example, in this case by establishing plaintiffs' associations with theCheektowaga Bee (see Geisler v. Petrocelli, supra, p. 640; Brayton v. Crowell-Collier Pub. Co., 2nd Cir., 205 F.2d 644, 645). But where extrinsic facts are relied on to prove the reference to a plaintiff, he must show that the conclusion that the publication refers to him is reasonable and that the extrinsic facts upon which that conclusion is based were known to those who read or heard the publication (see Geisler v. Petrocelli, supra, p. 639; Prosser and Keeton, Torts § 111, p. 783 ).

Under the usual rule in cases where a plaintiff is not named in a publication it is for the jury to determine whether the "of and concerning" requirement of the cause of action has been met (see Geisler v. Petrocelli, supra; Fetler v. Houghton Mifflin Co., supra; Brayton v. Crowell-Collier Pub. Co., supra; Handelman v. Hustler Magazine, Inc., supra; Gross v. Cantor, supra; Michaels v. Gannett Co., 10 A.D.2d 417, 419, 199 N.Y.S.2d 778; Bridgwood v. Newspaper PM, Inc., 276 App.Div. 858, 93 N.Y.S.2d 613). There is no reason to vary from the rule here.

Defendants in their answer have specifically denied that the publication was "of and concerning" plaintiffs and allege in an opposing affidavit by their attorney that "the relationshipbetween Bee Publications, Inc., and George J. Measer, and the Cheektowaga Bee entirely unknown to the residents of the Town of Cheektowaga". That plaintiff Measer, in his moving affidavit and in his testimony, avers that he is widely known "in his capacity as president of plaintiff Bee Publications, Inc." and has "come to be known synonymously with Bee Publications and its newspapers including the Cheektowaga Bee" does not conclusively establish that the readers of the letter to the editor were aware of these facts or that they would reasonably conclude therefrom that the letter referred to plaintiffs (see, Prosser and Keeton, Torts § 111, p. 783 ). "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298). Because plaintiffs have not met this required showing, it was not incumbent upon defendant to "go forward and submit evidence to raise a question of fact" (Mulhauser v. Wood, 107 A.D.2d 1019, 485 N.Y.S.2d 670; see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

II

We find a question of fact with respect to whether the words were defamatory. Defendants point out that the letter did not assert as a fact that kickbacks, pay-offs or promises of future political endorsements occurred but rather was couched in terms of speculation and suspicion. The rule is that initially, "court must decide whether there is a reasonable basis for drawing the defamatory conclusion. If the contested statements are reasonably susceptible of a defamatory connotation, then 'it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader.' (Mencher v. Chesley, 297 N.Y. 94, 100 )" (James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 353 N.E.2d 834, supra; see Silsdorf v. Levine, 59 N.Y.2d 8, 12-13, 462 N.Y.S.2d 822, 449 N.E.2d 716, cert. den. 464 U.S. 831, 104 S.Ct. 109, 78 N.E.2d 111). Here the court in its decision has exceeded its limited role of deciding "whether there is a reasonable basis for drawing the defamatory conclusion" (James v. Gannett Co., supra, 40 N.Y.2d p. 419, 386 N.Y.S.2d 871, 353 N.E.2d 834) and has decided as well how the words were "likely to be understood". This question is for the jury to determine.

III

It is now settled that in cases involving the constitutional privilege the plaintiff has the burden...