Bouchard v. Daily Gazette Co.

• Decision Date: 25 February 2016
• Citation: 25 N.Y.S.3d 730,136 A.D.3d 1233
• Parties: Michael G. BOUCHARD, Appellant, v. DAILY GAZETTE COMPANY et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1233

25 N.Y.S.3d 730

Michael G. BOUCHARD, Appellant,

v.DAILY GAZETTE COMPANY et al., Respondents, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 25, 2016.

Michael G. Bouchard, Latham, appellant pro se.

Nixon Peabody, LLP, Albany (Andrew C. Rose of counsel), for respondents.

Before: McCARTHY, J.P., Lynch, Devine and Clark, JJ.

CLARK, J.

Appeal from an order of the Supreme Court (Connolly, J.), entered September 10, 2014 in Albany County, which granted a motion by defendants Daily Gazette Company and The Daily Gazette to dismiss the complaint against them.

In November 2012, plaintiff, an attorney, was convicted in the U.S. District Court for the Northern District of New York for alleged crimes committed in Albany, Rensselaer and Schenectady Counties. On November 30, 2012, defendants Daily Gazette Company and The Daily Gazette (hereinafter collectively referred to as defendants) received a Department of Justice (hereinafter DOJ) press release entitled "Attorney Convicted in Mortgage Fraud Prosecution," detailing plaintiff's charges and conviction and, later that day, published an article entitled "Albany lawyer convicted of mortgage fraud" based upon such press release. Thereafter, on November 27, 2013, plaintiff commenced this action for libel, alleging that defendants published false, libelous and defamatory statements about him in their newspaper. Defendants moved to dismiss plaintiff's complaint for failing to state a legally viable cause of action, arguing that their article was an accurate representation of the DOJ press release and, therefore, it was privileged under Civil Rights Law § 74. Supreme Court granted such motion, dismissing plaintiff's complaint against said defendants, and plaintiff now appeals. We affirm.

Civil Rights Law § 74 provides, in relevant part, that "[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" and, as such, "cloaks those publishing fair and true reports of judicial proceedings with immunity from civil liability" (Hughes Training, Inc., Link Div. v. Pegasus Real–Time, 255 A.D.2d 729, 730, 680 N.Y.S.2d 721 [1998] ). "[A]n article may be characterized as ‘fair and true’ if it is substantially accurate" (Tenney v. Press–Republican, 75 A.D.3d 868, 868, 905 N.Y.S.2d 356 [2010] ; see Holy Spirit Assn. for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 67, 424 N.Y.S.2d 165, 399 N.E.2d 1185 [1979] ). Moreover, "[a] fair and true report admits of some liberality; the exact words of every proceeding need not be given if the substance be substantially stated" (Holy Spirit Assn. for Unification of World Christianity v. New York Times Co., 49 N.Y.2d at 67, 424 N.Y.S.2d 165, 399 N.E.2d 1185 [internal quotation marks and citation omitted]; see Briarcliff Lodge Hotel, Inc. v. Citizen–Sentinel Publs., 260 N.Y. 106, 118, 183 N.E. 193 [1932] ) and "there is ‘no requirement that a publication report the plaintiff's side of the controversy’ " (Tenney v. Press–Republican, 75 A.D.3d at 869, 905 N.Y.S.2d 356, quoting Cholowsky v. Civiletti, 69 A.D.3d 110, 115, 887 N.Y.S.2d 592 [2009] [brackets omitted] ). Minor inaccuracies are " ‘not serious enough to remove [a party's] reportage from the protection of Civil Rights Law § 74 ’ " (Misek–Falkoff v. McDonald, 63 Fed.Appx. 551, 552 [2d Cir.2003], cert. denied 541 U.S. 960, 124 S.Ct. 1723, 158 L.Ed.2d 401 [2004], quoting Misek–Falkoff v. American Lawyer Media, 300 A.D.2d 215, 216, 752 N.Y.S.2d 647 [2002], lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477 [2003], cert. denied 541 U.S. 939, 124 S.Ct. 1693, 158 L.Ed.2d 360 [2004] ).

In light of the foregoing standard, we agree with Supreme Court that defendants' published statements were a fair and true representation of the DOJ press release, thus falling within the statutory privilege afforded by Civil Rights Law § 74. Although defendants used language that differed slightly from the DOJ press release in their article, given plaintiff's criminal charges and convictions detailed in the press release, the language used "does not suggest more serious conduct than that actually suggested in the official proceeding" (Geiger v. Town of Greece, 311 Fed.Appx. 413, 417 [2d Cir.2009] [internal quotation marks and citation omitted]; see Karedes v. Ackerley Group, Inc., 423 F.3d 107, 119 [2d Cir.2005] ; Hughes Training, Inc., Link Div. v. Pegasus Real–Time,

255 A.D.2d at 730, 680 N.Y.S.2d 721 ). A liberal reading of defendants' statements in the context of the article demonstrates that the statements are substantially accurate and, thus, a fair and true report of the DOJ press release (see Alf v. Buffalo News, Inc., 21 N.Y.3d 988, 990, 972 N.Y.S.2d 206, 995 N.E.2d 168 [2013] ; Becher v. Troy Publ. Co., 183 A.D.2d 230,...