Gilberg v. Goffi

• Decision Date: 09 July 1964
• Citation: 251 N.Y.S.2d 823,21 A.D.2d 517
• Parties: , 19 A.L.R.3d 1348 David C. GILBERG, Respondent, v. Ferrer F. GOFFI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 823

251 N.Y.S.2d 823

21 A.D.2d 517, 19 A.L.R.3d 1348

David C. GILBERG, Respondent, v. Ferrer F. GOFFI, Appellant.

Supreme Court, Appellate Division, Second Department.

July 9, 1964.

Harry Krauss, New York City, for appellant.

David C. Gilberg, Mount Vernon, pro se.

Before BELDOCK, P. J., and CHRIST, BRENNAN, RABIN and HOPKINS, JJ.

SAMUEL RABIN, Justice.

This appeal turns upon the extent of immunity to be accorded to the campaign utterances, oral and written, of a candidate for public office.

The learned Special Term held that the complaint stated a case for recovery in defamation, and that questions of fact were raised incident to the defenses of privilege and justification. In our opinion, the evidentiary showing made by each party establishes facts which are sufficient, under two landmark decisions rendered after the Special Term's decision, to warrant the granting of summary judgment in defendant's favor.

By reason of these recent pronouncements, the issues at bar may no longer be evaluated solely by the prior controlling precedents in the law of defamation. Now, all utterances addressed to public officials, when challenged in a civil libel action, must be accorded the constitutional safeguards for freedom of speech inherent in the First and Fourteenth Amendments of the Federal Constitution (New York Times Co. v. Sullivan, 376 U.S. 254, 264-265, 84 S.Ct. 710, 11 L.Ed.2d 686). The privilege of a citizen to criticize official conduct is part of the evolving body of the law of libel which now recognizes that public officials, in the performance of their duties, enjoy a concomitant immunity when they speak out on matters of public concern, even if a particular citizen be defamed in the process (Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359). The threat of a damage suit should not be permitted to inhibit or curtail the freedom of expression of either the citizen or the public servant (New York Times Co. v. Sullivan, supra, 376 U.S. at pp. 282-283, 84 S.Ct. 710).

In the New York Times case, the following principles were authoritatively declared:

(1) The ancient doctrine that the Constitution does not protect libelous publications may no longer be utilized where its application would serve to impose sanctions upon criticism of the official conduct of public officers (pp. 268-269, 84 S.Ct. 710);

(2) Expressions of grievance and protest on a public issue do not lose their constitutional protection by reason of a combination of falsity of factual statement and of defamatory content (p. 273, 84 S.Ct. 710);

(3) Public officials, like judges, are expected to be "men of fortitude" when assailed by half-truths, misinformation, charges of gross incompetence, disregard of public interest, communist sympathies, hints of bribery, embezzlement and the like, especially when such charges are hurled in the heat of a political campaign (pp. 272-273, 84 S.Ct. 710);

(4) In cases involving criticism of public officials, a new principle of qualified privilege in the law of libel is to be applied, namely (pp. 279-280, 84 S.Ct. p. 726):

'The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'

(5) This new principle is to be tested by the facts of each particular case in order to ascertain whether the alleged libelous statements were prompted by actual malice (pp. 284-286, 84 S.Ct. 710);

(6) On weighing the evidence, the court is to avoid such result as might suggest "that prosecutions for libel on government have any place in the American system of jurisprudence" (p. 291, 84 S.Ct. p. 732); and

(7) The court is likewise to avoid the thwarting of the free expression of impersonal attack on government by investing the remarks with a personal significance (p. 292, 84 S.Ct. 710).

In the New York Times case, the plaintiff was a police commissioner who sought damages in libel by attributing to himself certain false statements which had been published in an advertisement in the Times newspaper with respect to the Montgomery (Alabama) local police force which he headed. Plaintiff's money judgment was reversed for lack of demonstration of direct reference to him in the publication and for lack of proof of defendants' actual malice.

In our opinion, the same deficiencies render insufficient the present plaintiff's cause of action. While the plaintiff claims that he was not a public official, it is our opinion, based upon the proof adduced on the defendant's cross motion for summary judgment, that plaintiff's action is so closely related to criticism of a public official that the Times case is determinative and that the plaintiff has no justiciable claim.

The pertinent facts here may be briefly stated:

The Mayor of the City of Mount Vernon was a reputable lawyer who assumed and functioned in his office of Mayor during the period 1960 to 1963. Since June 1, 1960, plaintiff, likewise a lawyer of good reputation and standing, has been a partner in the Mayor's law firm.

Before the Mayor assumed his office, and during his tenure, the Daily Argus, a newspaper published in the City of Mount Vernon, reported in various news articles that the question of the adoption and enforcement of a municipal conflicts-of-interest rule had been locally advanced. In March and April, 1958, the Argus reported that Alderman Kendall had advocated passage of a local law dealing with conflicts of interest. In September, 1962, additional articles with reference to such a local law appeared in the Argus. In November, 1962, the Argus published a news article to the effect that one Bornstein, who had been feuding with the Mayor on municipal and political matters, had filed a 'complaint' with this court in which he challenged the right of plaintiff Gilberg to represent clients in the local City Court while his law partner was Mayor of the city. In the same month, the Argus further reported that one Zimmerman had sent a letter to the local Common Council urging that a local law be adopted so as to bar a Mayor or his law firm from practicing law in the City Court or before municipal agencies and that the Common Council had referred the letter to the local bar association.

In the Fall of 1963, the defendant, a faithful reader of the Argus, became an independent candidate for the office of Alderman, election to which position would make him a member of the local Common Council. His rival candidates were two incumbent Republican aldermen (one of whom was Alderman Kendall) and two Democratic candidates. In the ensuing election campaign the defendant was associated with Bornstein and other opponents of the Mayor who was seeking-re-election to that office.

On the Night of October 22, 1963, defendant together with Bornstein appeared on the public platform, and both made speeches before an audience. The defendant read his speech from a prepared typewritten manuscript, copies of which had been signed by him and distributed earlier to the press for publication. In his address, in the part now relevant, the defendant made the following remarks:

'One of my opponents claimed credit for being the sponsor of a Conflicts of Interests code. We read in the papers of the charges that the mayor's law firm was practicing in the City Court of Mount Vernon, under conditions which show a clear conflict of interests. Yet, neither of them called for any investigation. Is it that they did not care or that they did not dare?

'They have failed to show any courage as aldermen. There has not been a dissenting vote among them in so long a time that it is difficult to remember when any such thing happened. No group can think so much alike for so long a time on so many subjects.

'It would seem as though someone else is doing the thinking for them and that they are merely the 'Yes' men for this individual. By being 'Yes' men, they have allowed our city to become disgraced among all of the cities of our nation.

'Of my Democratic opponents, both are lackeys of the Democratic mayoralty candidate * * *

'Our mayoralty candidate * * * is a man of recognized decency and integrity. He is our one hope to bring back our city to the sphere of respectability. To do this, he needs aldermen who are prepared to act for him when action is necessary. As members of his team, my running mate and I will see to it that he gets the legislation he needs to carry out his purpose.'

The defendant's address was reported in the Daily Argus in its issue of October 23, 1963. Orally on the following day, and by copy of a letter sent to such newspaper on October 25, 1963, the plaintiff informed defendant that his (defendant's) statements about the Mayor's law firm were false and defamatory; and plaintiff called upon defendant either to justify publicly his remarks or to avow his error. Plaintiff's written communication stated that he was not a 'politician'; that he sought no public office; that no law, rule or regulation prohibited his law firm from practicing in the City Court; and that his firm had appeared in no case 'where a conflict of interests may or might arise.'

Defendant proffered no formal retraction. In lieu thereof, on October 28, 1963 he sent a letter to the Argus, the substance of which it printed in a news article. In such letter defendant referred to the publication in the Argus on November 19, 1962 of an article reciting the filing of the Bornstein 'complaint' to this court, and then went on to state:

'This fully supports my statement. I have no interest in Mr. Gilberg's method of practicing law, except insofar as it concerns the conduct of the Common Council. I have said and still argue that it was the duty of the Common Council, who on previous occasions, had voiced...