Fairley v. Peekskill Star Corp.

• Decision Date: 16 November 1981
• Citation: 83 A.D.2d 294,445 N.Y.S.2d 156
• Parties: , 8 Media L. Rep. 1427 Charles H. FAIRLEY, Respondent, v. PEEKSKILL STAR CORPORATION et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 156

445 N.Y.S.2d 156

83 A.D.2d 294, 8 Media L. Rep. 1427

Charles H. FAIRLEY, Respondent, v. PEEKSKILL STAR CORPORATION et al., Appellants.

Supreme Court, Appellate Division Second Department.

Nov. 16, 1981.

Olwine, Connelly, Chase, O'Donnell & Weyher, New York City (James E. Tolan, Erica B. Baird and Terrence J. O'Rourke, New York City, of counsel), for appellants.

Babchak, Daly & Lavery, Ossining (Hugh A. Lavery, Jr., Ossining, of counsel), for respondent.

WEINSTEIN, Justice.

To defeat a motion for summary judgment by a media defendant in a libel action, the plaintiff must demonstrate that genuine and material questions of fact exist concerning the challenged elements of the cause of action. The plaintiff must also show that he can establish those elements at trial by the appropriate burden of proof (cf. DiLorenzo v. New York News, 81 A.D.2d 844, 432 N.Y.S.2d 483 In this action, the plaintiff has asserted that an entire article published by the Peekskill Evening Star on January 28, 1975 is libelous.

The article was entitled "Only slim chance seen for Loyola retardate facility". It referred to a proposal made by the plaintiff for a noncommunity based, intermediate care facility of 200 beds on the grounds of a former Jesuit seminary, primarily for mentally retarded children. The purpose of the proposed institution was to provide full service care for those children who were educable. At the time of publication, program planning was not complete and the plaintiff had not made a formal application for licensure. The article took the position that the planned facility would not meet State standards concerning the care of the mentally retarded and that a formal application had little chance for success. The plaintiff claims that the Star's article defamed him and prevented the completion of the proposed facility. He therefore instituted this suit seeking $500,000 in damages.

After discovery had been completed, the newspaper and the corporation that owns and publishes it moved for summary judgment, contending that the comments contained in the article were not capable of defamatory meanings, that the comments were true, and that they were published with the constitutionally mandated standard of care.

Special Term denied the motion, finding that questions of fact existed. We disagree. We find that the plaintiff's action cannot survive the defendants' attack. Our decision is based in part on the plaintiff's failure to show defamatory meaning of the challenged words, in part on his failure to show falsity, and in part on his failure to show that the defendants fell short of constitutionally mandated standards of care in publishing for media defendants in libel suits.

The majority of the statements in the context of the article are not reasonably susceptible of defamatory inferences (cf. James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834). For example, the reporter stated that the plaintiff "describes himself as a social scientist". The plaintiff has asserted that this statement is false. But falsity is not sufficient. The statement must also be defamatory (see Nichols v. Item Publishers, 309 N.Y. 596, 601, 132 N.E.2d 860).

Among certain segments of the population a social scientist designation might be considered unflattering. However, the peculiarities of taste found in eccentric groups cannot form a basis for a finding of libelous inferences. In New York, defamatory meaning will be found only in "words which tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society. (Sydney v. Macfadden Newspaper Pub. Corp., 242 N.Y. 208, 151 N.E.2d 209)" (Kimmerle v. New York Evening Journal, 262 N.Y. 99, 102, 186 N.E. 217; Schermerhorn v. Rosenberg, 73 A.D.2d 276, 284, 426 N.Y.S.2d 274). The negative inference must also be recognized by a substantial portion of the community (see Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257). The term "social scientist" does not meet these criteria. In any event, one who states, as did the plaintiff, that he is a "social theoretician planner and developer" is not disparaged professionally by being labeled a "social scientist" (see Nichols v. Item Publishers, supra, 309 N.Y. p. 601, 132 N.E.2d 860). Courts "will not strain" to find a defamatory inference "where none exists" (Cohn v. National Broadcasting Co., 50 N.Y.2d 885, 887, 430 N.Y.S.2d 265, 408 N.E.2d 672).

The plaintiff also objects to the use of the word "claims" in the following portion of the article: "Fairley claims course credits equivalent to an M.A. in Social Psychology from the New School of Social Research and additional credits toward an MBA in Business Administration" (emphasis supplied). However, the word "claims" in the context of this sentence has no defamatory meaning. It indicates that the plaintiff is in possession of or has acquired a certain number of credits. At worst, it could mean that the statement was not checked for truth. That some people would receive a negative impression from its use cannot serve to make the statement actionable. It is the function of a reporter to indicate the extent of the investigation so that the public will have some basis upon which to evaluate his conclusions.

The above instances of lack of defamatory meaning, however, are not the only deficiencies in the plaintiff's case. The plaintiff never demonstrated that questions of fact exist concerning the falsity of many of the statements.

We note that at common law the defamed plaintiff had no such burden. The defendant was required to prove truth as a defense (see 1 Seelman, Law of Libel and Slander in New York, par 392). More recently, however, in cases against a media defendant, the defamed plaintiff has been required to prove falsity but only after he has been found to be a public official or a public figure. In Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 366 N.E.2d 1299, the Court of Appeals stated that "requirement follows naturally from the actual malice standard. Before knowing falsity or reckless disregard for truth can be established, the plaintiff must establish that the statement was, in fact, false." We see no significant distinction where the plaintiff is held to be a private figure and the topic of the article is a matter of public concern. In such cases the plaintiff is required to prove gross irresponsibility (see Chapadeau v. Utica Observer Dispatch, 38 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 341 N.E.2d 569) resulting in a defamatory falsity. Under such circumstances, proof of falsity is again naturally related to the standard of care. Thus, in a case with constitutional implications such as the one at bar, the defamed plaintiff must prove falsity, irrespective of his status (see Wilson v. Scripps-Howard Broadcasting Co., 6 Cir., 642 F.2d 371).

In this case, the plaintiff himself has admitted that most of the statements contained in the article are at least substantially true. Substantial truth is all that is necessary to defeat a charge of libel (see Rinaldi v. Holt, Rinehart & Winston, supra, 42 N.Y.2d p. 383, 397 N.Y.S.2d 943, 366 N.E.2d 1299). One significant illustration occurs in the article's observation that while the plaintiff has said that his next door neighbor would replace him as president of the foundation sponsoring the proposal, the next door neighbor said he "wants no part of being president". Plaintiff has admitted making the comment to the reporter and discovering only later that his neighbor changed his mind. Thus, the statement is true and cannot serve as a basis for litigation.

The actionability of some of the other comments published in the article is best measured against the standard of care required to be used in publishing them. The defendants have asserted that the constitutionally mandated standard of care in this case is actual malice, based on their contention that the plaintiff is a limited issue public figure who has thrust himself into a public controversy in order to influence its outcome (Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789). The plaintiff points to the statement of the reporter that the article "dealt with a potentially controversial matter, yes. It was not a controversy at that time", and maintains that the gross irresponsibility standard is more appropriate to his status as a private figure involved in a matter of public concern (Chapadeau v. Utica Observer Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 supra).

The status of the plaintiff must be established before the appropriate standard of care can be determined (Greenberg v. CBS, Inc., 69 A.D.2d 693, 703, 419 N.Y.S.2d 988). The burden of proof with respect to the status of the plaintiff is on the media defendant (see Waldbaum v. Fairchild Pubs., D.C.Cir., 627 F.2d 1287, cert. den. 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 8). The plaintiff will be considered a limited issue public figure in this case, if the defendants demonstrate that the plaintiff has voluntarily acted to influence the resolution of a public controversy. Thus, a finding that such a controversy exists in the first instance is a prerequisite to the status determination (Greenberg v. CBS, Inc., supra, 69 A.D.2d p. 704, 419 N.Y.S.2d 988).

The nature of a public controversy has been defined, and the inquiries necessary to demonstrate its existence have been ascertained, by the United States Circuit Court of Appeals for the District of Columbia in Waldbaum v. Fairchild Pubs., supra, pp. 1296-1297: "A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way. The Supreme Court has made clear that...