Chilvers v. New York Magazine Co., Inc.

• Court: New York Supreme Court
• Writing for the Court: EDWARD H. LEHNER
• Citation: Chilvers v. New York Magazine Co., Inc., 453 N.Y.S.2d 153, 114 Misc.2d 996 (N.Y. Sup. Ct. 1982)
• Decision Date: 23 July 1982
• Parties: , 8 Media L. Rep. 2229 Chris CHILVERS, Health History Services, Inc., and Cardio-Aerobic Centers, Inc., Plaintiffs, v. NEW YORK MAGAZINE COMPANY, INC. and Martha Hume, Defendants. -A

Page 153

453 N.Y.S.2d 153

114 Misc.2d 996, 8 Media L. Rep. 2229

Chris CHILVERS, Health History Services, Inc., and Cardio-Aerobic Centers, Inc., Plaintiffs, v. NEW YORK MAGAZINE COMPANY, INC. and Martha Hume, Defendants.

Supreme Court, Special Term New York County, Part 1-A.

July 23, 1982.

Purrington & McConnell, New York City, for plaintiffs.

Squadron, Ellenoff, Plesent & Lehrer, New York City, for defendants.

EDWARD H. LEHNER, Judge:

This motion raises the issue of whether the mere assertion of a claim for punitive damages entitles the claimant as of right to obtain pre-trial information with respect to the profits of the alleged offending party.

Defendants move pursuant to CPLR §§ 3133 and 3103(a) to strike interrogatory # 5 of the fourth set of interrogatories, and to strike item # 1 from the Notice of Discovery and Inspection both of which seek information relating to the profits of the defendant New York Magazine for 1978, 1979 and 1980.

This is an action to recover for an alleged libel. On February 28, 1979, New York Magazine published an article written by defendant Martha Hume entitled "Warning: It has been determined that a stress test can be dangerous to your health." Plaintiffs, who are in the business of fitness monitoring, claim that as a result of this publication their reputation has been damaged.

Defendants claim that both discovery requests are objectionable as they relate solely to the issue of punitive damages. Defendants allege that plaintiffs are only entitled to said financial information "after plaintiffs have established their right to such damages." Plaintiffs argue that the information is relevant and appropriate at this time in order to ensure an orderly trial.

Generally, the wealth of a defendant is not discoverable since "has been the theory of our government and a cardinal principle of our jurisprudence that the rich and poor stand alike in courts of justice, and that neither the wealth of the one nor the poverty of the other shall be permitted to affect the administration of the law." Laidlaw v. Sage, 158 N.Y. 73, 103, 52 N.E. 679 (1899).

Nevertheless, when dealing with the question of punitive damages, the purpose of which is to deter wrongful acts, there are strong policy reasons why the claimant should be entitled to present to the trier of facts evidence of the financial condition of the offender. Although several courts have taken contrary positions (See: Wilson v. Onondaga Radio Broadcasting Corporation, 175 Misc. 389, 23 N.Y.S.2d 654 and cases cited therein), this court is of the opinion that if the purpose of an award of punitive damages is to be realized, then financial status should be considered. See: Rupert v. Sellers, 48 A.D.2d 265, 368 N.Y.S.2d 904 (4th Dept. 1975); Klauber v. S.K.E. Operating Co., Ltd., 163 Misc. 418, 295 N.Y.S. 701 (Sup.Ct., Onondaga Co. 1937). Would we deter the commission of malicious acts by the wealthy if they were punished the same as the poor? Although the sanctions of the criminal law obviously do not consider the wealth of the offender, if wealth were not considered when dealing with the imposition of civil exemplary damages, the reason for the imposition of the award would be subverted.

Thus, having found that financial status is a factor in assessing punitive damages, the issue...