Curry v. Roman

• Decision Date: 15 November 1995
• Docket Number: No. 1,1
• Parties: Wilson H. CURRY, Individually and d/b/a Williston Auctions, and Williston Auctions, Inc., Respondents-Appellants, v. Herbert ROMAN, Individually and d/b/a Herbert Roman Galleries, Herbert Roman, Inc., and Leo Heaps, Appellants-Respondents. Joseph V. PARLATO and Ardmore, Inc., Respondents-Appellants, v. Herbert ROMAN, Individually and d/b/a Herbert Roman Galleries, and Herbert Roman, Inc., and Leo Heaps, Appellants-Respondents. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 391

635 N.Y.S.2d 391

217 A.D.2d 314

Wilson H. CURRY, Individually and d/b/a Williston Auctions, and Williston Auctions, Inc., Respondents-Appellants, v. Herbert ROMAN, Individually and d/b/a Herbert Roman

Galleries, Herbert Roman, Inc., and Leo Heaps,

Appellants-Respondents.

Joseph V. PARLATO and Ardmore, Inc., Respondents-Appellants, v. Herbert ROMAN, Individually and d/b/a Herbert Roman

Galleries, and Herbert Roman, Inc., and Leo Heaps,

Appellants-Respondents. (Appeal No. 1.)

Supreme Court, Appellate Division,

Fourth Department.

Nov. 15, 1995.

Saperston and Day, P.C. by Brian J. Weidner and Robert J. Maranto, Buffalo, for Appellants--Roman, Individually and d/b/a Herbert Roman Galleries.

Bouvier, O'Connor by John F. Canale, Buffalo, for Appellant--Leo Heaps.

Gross, Shuman, Brizdle and Gillfillan, P.C. by Howard B. Cohen, Buffalo, for Respondents--Parlato and Ardmore, Inc.

Marcus, Knoer and Crawford by Robert E. Knoer, Buffalo, for Respondents--Wilson H. Curry, Individually and d/b/a Williston.

Before PINE, J.P., and FALLON, CALLAHAN, DOERR and DAVIS, JJ.

DOERR, Justice.

These related but not consolidated defamation actions arose out of events that occurred on December 14, 1991, at an auction held to liquidate the art collection of Empire of America (Empire), an insolvent bank. Plaintiffs Joseph V. Parlato and Ardmore, Inc. (collectively Parlato) were retained by the Resolution Trust Corp. (RTC) to liquidate Empire's remaining works of art. Parlato then hired plaintiffs Wilson H. Curry, an auctioneer, d/b/a Williston Auctions, and Williston Auctions, Inc. (collectively Curry) to conduct the auction.

The auction generated a fair degree of advance media attention. Parlato arranged for Curry to make television appearances to advertise the auction on the three local stations and interviews were given to the print media. Moreover, over 4,000 flyers were mailed to announce the auction. A brochure listing the items to be auctioned was provided in advance of the sale. The "jewel" of the auction was a nineteenth-century oil painting of Niagara Falls by T.B. Thorpe (the Thorpe painting). The Thorpe painting was listed as lot 149 in the auction program.

Defendant Leo Heaps, a Toronto art dealer, received a brochure and traveled to Buffalo to attend the auction to bid on the Thorpe painting on behalf of himself and defendants Herbert Roman, d/b/a Herbert Roman Galleries and Herbert Roman, Inc. (collectively Roman). Roman, the owner of an art gallery in New York City, had authorized Heaps to bid up to $40,000 on the Thorpe painting.

Heaps arrived early and was in attendance when the auction commenced. After Curry had sold the first 15 to 20 lots, Heaps left the auction to get some coffee at a nearby shopping mall. While Heaps was gone, Curry departed from selling the lots in numerical order and sold the Thorpe painting at lot 70 to a former Empire employee for $6,700. When Heaps returned, Curry was selling lot 110. Curry sold lot 148, then skipped to lot 150. Heaps questioned Parlato, then Curry, about what had occurred. They informed him that the Thorpe painting had been sold earlier and that several announcements had been made during the auction to inform the audience that the Thorpe painting would be sold earlier. According to plaintiffs, Heaps then became very agitated and called them "crooks", "liars", "thieves", and "swindlers". Those statements form the basis of plaintiffs' first causes of action against Heaps.

Following his alleged outburst, Heaps telephoned Roman in New York City to tell him what had happened. Roman then contacted, among others, members of the media. Plaintiffs allege, as their second causes of action against Roman, that they were defamed by statements attributed to Roman in a December 18, 1991 story that appeared in the New York Post and in stories that appeared in the Buffalo News on December 18 and 19, 1991. In the Buffalo News stories, plaintiffs are specifically named and Roman is quoted as saying that their actions amounted to "absolute thievery". In the December 18, 1991 Buffalo News story, Roman alleged that there was "some sort of collusion somewhere along the line". In the December 19, 1991 story in the Buffalo News, Roman stated that he suspected "collusion between the buyer and auctioneer". In the New York Post story, Roman was quoted as stating that the Thorpe painting was worth $100,000 and was "suspiciously given away for only $7,000". He further stated that the government "lost a lot on the deal".

Following discovery, Roman moved for summary judgment dismissing plaintiffs' complaints against him on the ground that plaintiffs, as public figures, had failed to raise a triable issue whether he had acted with actual malice. Plaintiffs cross-moved for summary judgment against Roman and Heaps on the issue of liability. Heaps did not respond to plaintiffs' cross motions nor did he appear at oral argument, and judgment was entered against him by default. Supreme Court found, as a matter of law, that plaintiffs were public figures, but denied Roman's motion for summary judgment dismissing plaintiffs' complaints. The court found that Heaps was acting as Roman's agent when he made the allegedly defamatory statements, but found a question of fact whether Heaps was acting in furtherance of the agency relationship when he made the statements. The court denied plaintiffs' motions in all other respects.

Heaps then moved to reargue the motions. The court treated the motion as one to vacate the default judgments granted against him, and granted the motion on the condition that Heaps provide an undertaking in the amount of $75,000. Heaps then moved to vacate the condition that he post an undertaking, and the court denied the motion. The undertaking has never been posted.

Roman appeals from the order of Supreme Court, entered July 19, 1994 (appeal No. 1), insofar as it denied his motion to dismiss plaintiffs' complaints on the ground that plaintiffs failed to raise a triable issue whether he acted with actual malice. Heaps appeals from that order on the same ground. The appeal of Heaps must be dismissed, however, because no appeal lies from an order entered upon a default (see, CPLR 5511). Plaintiffs cross-appeal from the order insofar as it denied their cross motions for summary judgment on the issue of liability. They also argue that the court improperly failed to determine certain issues as a matter of law.

Heaps appeals from the court's orders, entered October 28 and 13, 1994 (appeal Nos. 4 and 5), insofar as they conditioned the granting of his motion to vacate his default in plaintiffs' actions upon his providing an undertaking in the amount of $75,000. Heaps also appeals from the court's orders, both entered November 2, 1994 (appeal Nos. 2 and 3), that denied his motion to delete from the court's prior orders the condition that he provide an undertaking.

To prevail in a defamation action, a public figure plaintiff must show that the alleged statements were about and concerning him, that they were likely to be understood as defamatory by the ordinary person, that the statements were false, and that they were published with actual malice (see, Bee Publs. v. Cheektowaga Times, 107 A.D.2d 382, 382-383, 485 N.Y.S.2d 885). Plaintiffs met their burden of proving, as a matter of law, that the statements were about them and that the statements were published. Plaintiffs also met their burden of proving the falsity of the statements as a matter of law (see, Dibble v. WROC TV Channel 8, 142 A.D.2d 966, 530 N.Y.S.2d 388).

Plaintiffs further met their burden of proving that the statements were defamatory. Whether a statement is defamatory is first a question for the court (see, Park v. Capital Cities Communications, 81 A.D.2d 192, 195, 585 N.Y.S.2d 902, lv. denied, 81 N.Y.2d 879, 597 N.Y.S.2d 929, 613 N.E.2d 961; see also, Silsdorf v. Levine, 59 N.Y.2d 8, 12, 462 N.Y.S.2d 822, 449 N.E.2d 716, cert. denied, 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111; James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 353 N.E.2d 834, rearg. denied 40 N.Y.2d 990, 390 N.Y.S.2d 1027, 359 N.E.2d 440). Once the court concludes that the statements are reasonably susceptible of a defamatory connotation, it becomes a jury function, if the words are susceptible of several different meanings, to determine whether that was the sense in which the words were likely to be understood by the ordinary and average reader or listener (see, Bee Publs. v. Cheektowaga Times, supra, at 386, 485 N.Y.S.2d 885). If the words, however, are unambiguous and admit but one meaning, the court should resolve the issue (see, 2 NY PJI 126 [1995 Supp]. We conclude that the words used by defendants, which accused plaintiffs of specific criminal conduct (see, Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 382, 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), were clear and unambiguous, and were defamatory as a matter of law. We also agree with plaintiffs that the statements were actionable expressions of fact rather than non-actionable...