Daniel Goldreyer, Ltd. v. Van De Wetering

• Decision Date: 13 July 1995
• Citation: 217 A.D.2d 434,630 N.Y.S.2d 18
• Parties: , 23 Media L. Rep. 2531 DANIEL GOLDREYER, LTD., et al., Plaintiffs-Respondents, v. Ernst VAN DE WETERING, et al., Defendants, and Elisabeth Bracht, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 18

630 N.Y.S.2d 18

217 A.D.2d 434, 23 Media L. Rep. 2531

DANIEL GOLDREYER, LTD., et al., Plaintiffs-Respondents, v. Ernst VAN DE WETERING, et al., Defendants and Elisabeth Bracht, et al., Defendants-Appellants.

Supreme Court, Appellate Division First Department.

July 13, 1995.

S.H. Klarsfeld, J.R. Berke, for plaintiffs-respondents.

E.T. Ferguson, III, D.S. Elkind, J.F. Rittinger, for defendants-appellants.

Before ROSENBERGER, J.P., and WALLACH, KUPFERMAN, ROSS and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Edward Greenfield, J.), entered on November 30, 1993, which, inter alia, denied appellants' respective motions and cross motions for dismissal of the complaint as against them, unanimously modified, on the law, to the extent that the motions of appellants Schnitzer and Time, Inc. to dismiss the amended complaint are granted, and otherwise affirmed, without costs. The clerk is directed to enter judgment in favor of defendants-appellants Time and Schnitzer dismissing and severing the action as to them.

The IAS court should have accorded the opinion privilege as a matter of law and dismissed the complaint insofar as based upon defendant Schnitzer's alleged comment, as printed in the December 30, 1991 edition of Time International, that plaintiffs' restoration of Barnett Newman's painting "Who's Afraid of Red, Yellow and Blue III", if rehung, should be accompanied by a warning sign, "Newman according to Goldreyer". Analysis of this statement in accordance with the factors set out in Steinhilber v. Alphonse, 68 N.Y.2d 283, 292, 508 N.Y.S.2d 901, 501 N.E.2d 550 leads to the conclusion that the statement does not have a precise meaning, cannot be objectively characterized as true or false, appears in an immediate context, the "Art" section of defendant Time Magazine, where the average person would understand it as, or expect to find, expression of opinion or personal taste, and appears in a broader context of the public debate over the artistic merit of the restoration. Accordingly, it is entitled to constitutional protection as opinion in the form of "imaginative expression" or "rhetorical hyperbole" (Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1; Polish Am. Immigration Relief Comm. v. Relax, 189 A.D.2d 370, 373, 596 N.Y.S.2d 756; Gonzalez v. Sackman, 185 A.D.2d 117, 585 N.Y.S.2d 433, app. dismissed 80 N.Y.2d 971, 591 N.Y.S.2d 139, 605 N.E.2d 875).

Similarly, defendant Time's speculation as to whether a "masterpiece" was "murdered", its assertion that "for the burghers of Amsterdam the glow is gone from Newman's once warmly wonderful masterpiece", and its allegation that "[t]he painting no longer exists[, and] has become a curiosity with a sad history" should also have been accorded the opinion privilege.

On the other hand, the opinion privilege was correctly withheld as to Time's other two statements referring to the report issued after investigation and hearings by the Dutch Ministry of Justice:

After microscopic tests on 30 samples of Newman's work, the lab concluded that Goldreyer had not matched the original oils.

and

Instead, the lab reported, the restorer had used alkyd, a synthetic paint commonly used on window frames.

This was not pure opinion, but opinion based upon fact, and therefore is actionable insofar as it contains implications of additional undisclosed facts (see, Larchmont Professional Fire Fighters Assn. v. Larchmont/Mamaroneck Volunteer Ambulance Corps., 206 A.D.2d 507, 508, 615 N.Y.S.2d 73). These statements contain such implications, since the Ministry of Justice report is not disclosed in detail and the statements raise the inference that it included a finding that plaintiffs used house paint for the restoration (see, Brown v. Albany Citizens Council on Alcoholism, 199 A.D.2d 904, 905, 605 N.Y.S.2d 577; Gross v. New York Times Co., 82 N.Y.2d 146, 155, 603 N.Y.S.2d 813, 623 N.E.2d 1163).

However, these two statements should have been accorded the absolute privilege as to fair and true reportage of an official proceeding embodied at Civil Rights Law § 74. This provision requires only that a statement be "substantially accurate" for the privilege to attach (Holy Spirit Assn. v. New York Times Co., 49 N.Y.2d 63, 67, 424 N.Y.S.2d 165, 399 N.E.2d 1185; Glendora v. Gannett Suburban Newspapers, 201 A.D.2d 620, 608 N.Y.S.2d 239, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 875, 639 N.E.2d 416; Freeze Right Refrig. & Air Conditioning Servs. v. City of New York, 101 A.D.2d 175, 182-183, 475 N.Y.S.2d 383; Sprecher v. Dow Jones & Co., 88 A.D.2d 550, 552, 450 N.Y.S.2d 330, affd. 58 N.Y.2d 862, 460 N.Y.S.2d 527, 447 N.E.2d 75), and "substantially accurate" is interpreted liberally (see, Becher v. Troy Publ. Co., 183 A.D.2d 230, 233-234, 589 N.Y.S.2d 644). The test is whether the published account of the proceeding would have a different effect on the reader's mind than the actual truth, if published (Dibble v. WROC TV Channel 8, 142 A.D.2d 966, 967, 530 N.Y.S.2d 388). If the published account, along with the rest of the article, suggests more serious conduct than that actually suggested in the official proceeding, then the privilege does not attach, as a matter of law (Ocean State Seafood v. Capital Newspaper, 112 A.D.2d 662, 666, 492 N.Y.S.2d 175).

Time's statements accurately described the findings stated in the report, and in context did not suggest more serious conduct than that actually found as a result of the proceedings.

The third defamation defendant, Dow Jones & Company, failed to establish that dismissal was warranted as to it by either the opinion privilege, the Civil Rights Law § 74 privilege, the "single instance" rule, or under Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569, with regard to the five cited portions of the December 24, 1991 article appearing in The Wall Street Journal ("the Journal").

As with Time's statements referring to the Ministry of Justice report, the opinion privilege does not apply to the statements complained of in the Journal article, which were not pure opinion, but opinion based upon fact, and therefore actionable since there were implications of additional undisclosed facts (see, Larchmont Professional Fire Fighters Assn., supra ). The article does not quote the Ministry of Justice report in detail and the portions of the article cited by plaintiffs, when read in context, suggest that there has been an investigation and that the reporters are in possession of undisclosed details from the report that support the assertions they make against plaintiffs (see, Gross v. New York Times Co., supra; Larchmont Professional Fire Fighters Assn., supra; Brown v. Albany Citizens Council on Alcoholism, supra ).

The Wall Street Journal article does not qualify for the Civil Rights Law § 74 privilege. As already stated, the test is whether the published account of the official proceeding would have a different effect on the mind of the reader than the actual truth, if published. While the report is couched in highly technical language and dispassionately notes differences in chemical composition between the original paints used and those used by plaintiffs in the restoration, the Journal article describes the paint as inappropriate and speaks of the use of "house paint" and "roller brushes". The published account suggests more serious conduct than that suggested in the official proceeding; thus the privilege may not be asserted as a matter of law (Ocean State Seafood v. Capital Newspaper, supra ).

Contrary to Dow Jones' assertion, plaintiffs' failure to plead special damages here is not fatal to their claim. The "single instance" rule, wherein language charging a professional with ignorance or mistake on a single occasion only, not generally, is not actionable defamation unless special damages are pleaded (November v. Time, Inc., 13 N.Y.2d 175, 178, 244 N.Y.S.2d 309, 194 N.E.2d 126; Bowes v. Magna Concepts, 166 A.D.2d 347, 561 N.Y.S.2d 16), may not be invoked here by Dow Jones, because it does not apply to an accusation of conduct showing such lack of character that the plaintiff would be unfit for his profession (see, Rutman v. Giedel, 67 A.D.2d 662, 411 N.Y.S.2d 960; Mason v. Sullivan, 26 A.D.2d 115, 117, 271 N.Y.S.2d 314). The Journal article stated that plaintiff performed a "restoration" on a million dollar abstract masterpiece using a roller brush and house paint and implied that the results warranted possible criminal charges after an official investigation. In the context of plaintiffs' profession, this must be seen as an intolerable commission of "highly unprofessional conduct" (Armstrong v. Simon & Schuster, 197 A.D.2d 87, 91, 610 N.Y.S.2d 503, affd. 85 N.Y.2d 373, 625 N.Y.S.2d 477, 649 N.E.2d 825). This is libel per se requiring no special damages (see, Puranmalka v. Puranmalka, 149 A.D.2d 493, 494-495, 539 N.Y.S.2d 802), and precluding the "single instance" defense (see, Rutman v. Giedel, supra; Mason v. Sullivan, supra ).

Dow Jones' assertion that it should have been granted dismissal due to the absence of any "gross irresponsibility" as journalists on its part, i.e., in this case the fact that the Ministry of Justice report exists (see, Chapadeau v. Utica Observer-Dispatch, supra ), should not be determined at this point. The issue should await discovery, especially given the Journal's failure to accurately summarize the Ministry of Justice report. Evidence needs to be developed as to whether proper journalistic practices were followed and whether there was editorial review (see, Hawks v. Record Printing & Publ. Co., 109 A.D.2d 972, 486 N.Y.S.2d 463).

As for the claims of the non-defamation defendants on this appeal, we concur with the IAS court that none of their contentions merit dismissal of the complaint.

Ms. Bracht's chief argument for dismissal of the complaint pursuant to CPLR 3211(a)(7) is that the pleadings are fatally...