Gilligan v. Farmer
| Decision Date | 25 April 1968 |
| Parties | Thomas R. GILLIGAN, Plaintiff-Respondent, v, James FARMER and Congress of Racial Equality, a/k/a 'Core', Defendants-Appellants, and Martin Luther King, Jr., Jessie Gray, William Epton, Michael Crenovick, Tri-Line Offset Co., Inc., Progressive Labor Movement and Harlem Defense Council, Defendants. |
| Court | New York Supreme Court — Appellate Division |
Bradley R. Brewer, New York City, of counsel (Denison Ray and Stephen Nagler, New York City, with him on the brief, Bradley R. Brewer, Eugene G. Eisner, Carl I. Rachlin, New York City, attorneys), for appellants.
Lewis S. Sandler, New York City, of counsel (Saxe, Bacon & Bolan, New York City, attorneys), for respondent.
Before BOTEIN, P.J., and STEVENS, EAGER, CAPOZZOLI and McGIVERN, JJ.
In this appeal from an order denying a motion to dismiss a complaint sounding in libel, we agree with the dissenting Justice that there is nothing in plaintiff's affidavit tending to connect the individual defendant Farmer with the alleged defamation. While a majority of the court is of the opinion that the rule announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, is applicable to the case against the defendant Congress of Racial Equality (CORE), the present record does not justify summary determination of CORE's responsibility for the poster or, if it was responsible, of the issue of actual malice.
Accordingly, the order should be modified, on the law, to the extent of granting the motion as to defendant Farmer, and otherwise affirmed, without costs and without disbursements, with leave to defendant CORE to renew its motion, if so advised, after joinder of issue and completion of pre-trial disclosure procedures.
Order entered on November 1, 1965, modified, on the law, to the extent of granting the motion as to defendant James Farmer, and, as so modified, affirmed, without costs or disbursements, with leave to defendant Congress of Racial Equality to renew its motion, if so advised, after joinder of issue and completion of pre-trial disclosure procedures.
All concur except STEVENS, J., who dissents in a dissenting opinion.
Defendants Farmer and Congress of Racial Equality, Inc. (CORE) appeal from an order entered November 1, 1965, which denied their motion to dismiss the complaint pursuant to CPLR 3211(a)(7) i.e., insufficiency, and (c) to have the motion treated as one for summary judgment. This is one of three appeals argued or submitted together. In two of the actions plaintiff seeks damages for libel and conspiracy. In the third action plaintiff seeks damages for slander. The underlying facts which gave rise to the incidents complained of are set forth fully in this dissent and only brief reference will be made to them in other writings.
This action is brought to recover monetary damages for an alleged libel and conspiracy. It is premised upon a poster which appeared on or about July 18, 1964. It is described as follows: 'Wanted For Munder' printed above a picture of plaintiff in uniform, below which appeared , under which is drawn a line in the center of the poster, and below the line 'Harlem Defense Council, 336 Lenox Ave., N.Y.C. Fi. 8--2254.' The libel, if any, must be found in the juxtaposition of the words 'Wanted For Murder' with the picture and identification of the plaintiff.
The incident which gave rise to the publication of the alleged libel as well as the alleged slander was a homicide which occurred July 16, 1964. Plaintiff, described as six feet two inches tall, weighing 200 pounds, who on several occasions allegedly had disarmed men with guns, while off duty shot and killed a boy, age 15, 5 feet 6 1/2 inches tall, who weighed 122 pounds. Accounts differ as to whether or not the boy was in possession of a knife with a three and one-half inch blade and whether or not he struck at the officer prior to the killing. Three shots were fired by the officer, two of which lodged in the boy's body, either one of which could have proved fatal.
Plaintiff in his complaint alleges he is a police lieutenant, and has been a policeman for seventeen years, during which time he has received one Exceptional Merit Award, three Accommodation Awards and ten Excellence Awards from the Police Department. He charges a conspiracy by these appellants and others to defame and injure him in his good name and reputation, and alleges upon information and belief they participated in the preparation and publication of the poster, above described, with actual malice and with reason to believe the words 'Wanted For Murder' to be false. Plaintiff makes no other reference to homicide in his complaint though he does relate his version of the occurrence in his affidavit submitted in opposition to the motion to dismiss the complaint.
Farmer, who was then National Director and chief executive officer of CORE, and CORE moved to dismiss the complaint. In his affidavit in support of the motion Farmer stated flatly that neither he nor CORE was, or ever had been, a member of or affiliated with either the Harlem Defense Council or the Progressive Labor Movement. Farmer denied participation in any conspiracy by himself for CORE, and in fact that he had ever even heard of plaintiff prior to July 16, 1964. Farmer denied that he or CORE had anything to do with the preparation or publication of the poster, had ever been consulted about it before publication or knew of its existence prior to completion and circulation. Farmer denied the existence of a policy by himself or CORE to injure plaintiff, or even that he, up to the date of his affidavit (September 10, 1965), knew who printed the poster or arranged for its circulation.
In opposition to the motion to dismiss, plaintiff alleges he commenced this action against Farmer and CORE following the appearance of the poster. This despite the fact that neither the name of Farmer nor of CORE appears on the poster. Plaintiff asserts his ground for the conspiracy charge 'is based on the fact that when various news media interviewed persons carrying the placards, or distributing the handbills (above described) * * * many of these persons indicated they were acting as members of the Congress of Racial Equality, Inc.' No attempt is made to identify the news media or the persons interviewed, nor is it asserted that Farmer or CORE authorized such persons, whoever they were, to appear for or represent either Farmer or CORE.
In the succeeding paragraph of his affidavit plaintiff asserts 'I have no personal knowledge, however, of the exact extent to which the defendants James Farmer and the Congress of Racial Equality, Inc. participated in the conspiracy, as this information is exclusively within the knowledge of these defendants.' The conclusion is irresistible that plaintiff merely case his lawsuit net into the sea of civil rights workers and organizations hoping, willy-nilly, to snare them in its mesh.
In a motion pursuant to CPLR 3211(c) 'either party may submit any evidence that could properly be considered on a motion for summary judgment and the court May treat the motion as a motion for summary judgment' (emphasis supplied). Both parties submitted affidavits on the motion below. Under such circumstances it was incumbent upon the plaintiff to come forward with some evidentiary fact tending to support the charges made in his complaint. This he has failed to do and the motion to dismiss should have been granted. To permit continuance of the action against these appellants upon the bare possibility or hope that plaintiff prior to trial may, in some fashion or manner, discover something which might give color or support to his claim is to unfairly penalize these appellants and unduly impose the further expense of possible protracted litigation. When the accuracy of a pleading is challenged pursuant to CPLR 3211(c) by matters dehors the pleading, the assumption that...
To continue reading
Request your trial
-
Droner v. Schapp
... ... 1197, 22 L.Ed.2d 454; Arizona Biochemical Co. v. Hearst Corp., D.C., 302 F.Supp. 412; Holmes v. Curtis Pub. Co., D.C., 303 F.Supp. 522; Gilligan v. Farmer, 30 A.D.2d 26, 289 N.Y.S.2d 846). Hence, appellants ... could be held liable only if they knowingly or recklessly published a false, ... ...
- Gilligan v. Farmer
- Giryluk v. Giryluk