Grobe v. Three Village Herald

• Citation: 420 N.Y.S.2d 3,69 A.D.2d 175
• Parties: , 5 Media L. Rep. 1769 Henry H. GROBE, Appellant, v. The THREE VILLAGE HERALD et al., Respondents.
• Decision Date: 06 August 1979
• Court: New York Supreme Court Appellate Division

Page 3

420 N.Y.S.2d 3

69 A.D.2d 175, 5 Media L. Rep. 1769

Henry H. GROBE, Appellant, v. The THREE VILLAGE HERALD et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Aug. 6, 1979.

Naidich & Smolev, P. C., Bellmore, (Stanley Pierce, Bellmore, of counsel), for appellant.

Lankenau, Kovner & Bickford, New York City, (Victor A. Kovner and Harriette K. Dorsen, New York City, of counsel), for respondents.

Before HOPKINS, J. P., and SUOZZI, GULOTTA and COHALAN, JJ.

PER CURIAM.

Plaintiff seeks to recover damages for libel. He appeals from an order which granted defendants' motion for summary judgment. The order should be affirmed.

Following a collision between plaintiff and a 13-year-old boy, while the boy was riding a bicycle in the shopping mall of which plaintiff was a major shareholder, plaintiff allegedly struck the child "about the face and his side with his hands". The boy was the son of a New York City policeman, Officer Scibelli. After the latter caused plaintiff's arrest on a charge of harassment (see Penal Law, § 240.25), plaintiff threatened to sue him for one million dollars damages. Plaintiff was subsequently granted an adjournment in contemplation of dismissal (ACOD) (see CPL 170.55). Defendant The Three Village Herald published an article reporting the ACOD as a "guilty plea". This libel action ensued.

We are in accord with Special Term's conclusion that plaintiff is a private individual (see Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789; Hutchinson v. Proxmire, --- U.S. ----, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); Wolston v. Reader's Digest Ass'n, --- U.S. ----, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979)). However, under the facts at bar, plaintiff's conduct and the operation of the criminal justice system with respect to disposition of the charges against plaintiff being a matter of public concern, plaintiff was under an obligation to adduce evidence of "gross irresponsibility" by defendants; that plaintiff failed to do and summary judgment was properly granted, as in Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569. At bar the defendant reporter deposed that he verified his information, Inter alia, by conversing with Police Officer Scibelli, father of the boy, and by calling the court. He also telephoned plaintiff but plaintiff did not return the call.

We note further that the record contains the uncontroverted averment of Officer Scibelli that:

"In this conversation, I told O'Rourke that Mr. Grobe had pleaded guilty. In the language of the police department, an application for an ACOD is similar to 'copping a plea'. To me and the other officers I work with, although there is a technical distinction between an ACOD and a plea of guilty, the two are frequently used interchangeably in conversation."

An ACOD is clearly not a guilty plea (see CPL 170.55, subd. 1, which states that an ACOD may be granted "before entry of a plea of guilty"; see, also, CPL 160.50, subds. 1 and 2, which include an ACOD dismissal as an order made "(u)pon the termination of a criminal action or proceeding against a person in favor of such person", entitling him to return of fingerprints, photographs, etc.).

The police view, as expressed by Officer Scibelli, however, is not without partial judicial support (see People v. Siragusa, 81 Misc.2d 368, 370, 366 N.Y.S.2d 336, 341 ("an A.C.O.D. as practiced in our courts is merely another category in what is commonly referred to as 'plea bargaining' "); Perez v. Dumpson, 88 Misc.2d 506, 389 N.Y.S.2d 279, mod. on other grounds 58 A.D.2d 887, 396 N.Y.S.2d 883; Kenul v. Hollander, 86 Misc.2d 466, 382 N.Y.S.2d 877; Cardi v. Supermarket Gen. Corp., D.C., 453 F.Supp. 633). Thus, from the viewpoint of assessing not whether the article was accurate but whether, in committing the error, defendants acted with gross irresponsibility, plaintiff's case is found wanting.

Order of the Supreme Court, Suffolk County, entered January 4, 1979, affirmed, with $50 costs and disbursements.

HOPKINS, J. P., and SUOZZI and COHALAN, JJ., concur.

GULOTTA, J., dissents and votes to reverse the order and deny the motion, with an opinion.

GULOTTA, Justice (dissenting).

I dissent and vote to reverse the order and deny defendants' motion.

Contrary to the views expressed by my brethren in the majority, it is my belief that there exists in this case a triable issue of fact as to whether the defendants acted in a "grossly irresponsible manner" (see Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 63, 341 N.E.2d 569, 570) in researching, preparing and publishing the allegedly libelous article, and that therefore the motion for summary judgment should have been denied. Accordingly, I would reverse and remit the case for a plenary trial.

In order for a plaintiff to recover in an action for libel under the standard set forth in Chapadeau (supra), it is necessary that he establish by a preponderance of the evidence (1) the falsity of the alleged libel (see Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 950, 366 N.E.2d 1299, 1305) and (2) that the defendant in publishing the libel acted in a grossly irresponsible manner "without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties" (Chapadeau v. Utica Observer-Dispatch, supra, 38 N.Y.2d p. 199, 379 N.Y.S.2d p. 64, 341 N.E.2d p. 571). Where, as in the case at bar, the falsity of the writing has been conclusively established ¹, the substantive issue confronting the court is whether there exists a triable issue of fact regarding the standard of care employed by the defendants in preparing the libelous article, and it is on this precise point that I differ from my colleagues in the majority.

In my opinion, the mere fact that the defendant reporter may have called the complainant (the infant's father) and the First District Court in order to "verify" his information regarding the purported plea, as he has alleged, and that he may also have attempted to call the plaintiff in an effort to secure his reaction to the disposition of the charges, cannot be said to satisfy the Chapadeau standards as a matter of law, so long as it further appears (1) that the reporter involved was a young man who, at the time, had little or no formal training or on-the-job experience as a police reporter; (2) that a personal inspection of the court docket would have revealed the true facts (i. e., that the plaintiff had received an ACOD, which is markedly different from a legal point of view than a plea of guilty (see CPL 170.55)); and (3) that upon being informed by an unnamed court clerk (or so it is alleged) that the plaintiff "had pleaded guilty and received (an) ACOD and was placed on six months probation", the reporter, who had no legal training or courtroom experience, failed to pursue the meaning of the term "ACOD" with anyone who might have knowledge of its legal significance, e. g., the court clerk, the District Attorney's office, plaintiff's attorney in the District Court proceedings or the newspaper's own counsel. Under these circumstances, it is my belief that assuming, Arguendo, the truth of these averments, it is for the trier of the facts to determine whether the steps taken to verify the story regarding plaintiff's purported plea satisfied the applicable standard of journalistic care, or whether the failure to inquire further constituted actionable "gross negligence" (see Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569, Supra ). In this connection, the observation of Mr. Justice TITONE in Greenberg v. CBS, Inc., App.Div., --- N.Y.S.2d ---, p. --- is, I believe, pertinent:

"One final contention of the defendants should also be discussed, namely the assertion that their motion (for summary judgment) should not be defeated in the absence of evidence showing that the 'defendants failed to act in accordance with the standards for pre-publication editorial procedures commonly followed by responsible journalists.' Succinctly stated, the defendants would require affidavits from competent, independent expert journalists before making a determination that the plaintiff had carried his burden.

"In Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569, Supra, the Court of Appeals fashioned a gross negligence standard to balance the need for free debate against the right of the individual to be secure in his reputation. Like the concept of malice, the Chapadeau standard is a legal measure, Designed to be applied in a wide range of circumstances and evaluated by the reasonable individual. These standards are not professional journalistic principles." (Emphasis supplied.)

In short, it is my belief that it has not been established...