Gilligan v. Farmer

• Decision Date: 25 April 1968
• Parties: Thomas R. GILLIGAN, Plaintiff-Respondent, v. James FARMER and Congress of Racial Equality, Inc., also known as 'CORE', Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 1014

290 N.Y.S.2d 1014

29 A.D.2d 935

Thomas R. GILLIGAN, Plaintiff-Respondent, v. James FARMER and Congress of Racial Equality, Inc., also

known as 'CORE', Defendants-Appellants.

Supreme Court of New York, Appellate Division,

First Department.

April 25, 1968.

L. S. Sandler, New York City, for plaintiff-respondent.

B. R. Brewer, New York City, for defendants-appellants.

Order entered November 1, 1965, denying motion to dismiss the complaint, sounding in slander, affirmed, without costs or disbursements, with leave to defendants-appellants to renew the motion, if so advised, after joinder of issue and completion of pre-trial disclosure procedures. While a majority of the court are agreed 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 this case, the present record does not lend itself to summary disposition of the issue of actual malice. 30 A.D.2d 26, 289 N.Y.S.2d 846.

All concur except STEVENS, J., who dissents in the following memorandum:

I agree with the majority that New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 is applicable. However, I would reverse and dismiss the complaint. Here, as in the companion appeal decided herewith (30 A.D.2d 26, 289 N.Y.S.2d 846) the motion to dismiss is made pursuant to CPLR 3211(a)(7) and (c). As in such appeal I would treat this motion as a motion for summary judgment also. Plaintiff alleges upon information and belief that the statements complained of were made by defendant Farmer. Farmer does not here make a specific denial but merely asserts he has no recollection of making such statements. However, Farmer does set forth at length the detailed investigation made by him or at his instigation, the report of the District Attorney, the content of the unidentifiable phone calls, the transmission of such information to the office of the District Attorney, defendant's attempt to check its accuracy and the refusal of the police to permit an interview with plaintiff. All of this would seem to negative any contention that the statements, even if made, were made with knowledge of their falsity or with reckless disregard of their truth. (See Schneph v. New York Post Corporation, 23 A.D.2d 822, 259 N.Y.S.2d 775, aff'd 16 N.Y.2d 1011, 265 N.Y.S.2d 897, 213 N.E.2d 309.) Plaintiff does not identify the source of his information as to the making of these statements nor does he set forth the basis for his belief. This is insufficient. ...