Gross v. New York Times Co.

Decision Date21 October 1993
Citation603 N.Y.S.2d 813,623 N.E.2d 1163,82 N.Y.2d 146
Parties, 623 N.E.2d 1163, 21 Media L. Rep. 2142 Elliot M. GROSS, Appellant, v. NEW YORK TIMES COMPANY et al., Respondents, et al., Defendants.
CourtNew York Court of Appeals Court of Appeals

TITONE, Judge.

This dispute has its origin in a series of investigative reports published by defendant New York Times between January of 1985 and February of 1986. The articles in question charged plaintiff, the former Chief Medical Examiner of the City of New York, with having mishandled several high profile cases and having used his authority to protect police officers and other city officials from suspicion after individuals in their custody had died under questionable circumstances. Defendants' articles spawned four separate criminal investigations into plaintiff's conduct, each of which terminated with findings that there was no evidence of professional misconduct or criminal wrongdoing by plaintiff. Plaintiff thereafter commenced the present action for libel. The issue at this early, preanswer stage of the litigation is whether plaintiff's pleadings sufficiently allege false, defamatory statements of fact rather than mere nonactionable statements of opinion. We hold that plaintiff's complaint, which encompasses actionable assertions of fact as well as nonactionable opinions and conclusions, is sufficient to withstand a motion to dismiss under CPLR 3211(a)(7).


Plaintiff's 59-page complaint cites essentially eight "false and defamatory" articles as the basis for his libel action. The first article in the series, which was published on January 27, 1985 under defendant Philip Shenon's byline, was entitled Chief Medical Examiner's Reports in Police-Custody Cases Disputed and had, as a subheadline, Cover-Ups Charged in Autopsies in Some Deaths--Gross Denies 'Misleading in Any Instance'. The opening two paragraphs asserted that, as the City's Chief Medical Examiner, plaintiff had "produced a series of misleading or inaccurate autopsy reports on people who died in custody of the police, according to colleagues in the Medical Examiner's office and pathologists elsewhere." Further, according to the article, plaintiff had "instituted a policy of special handling for police-custody cases," had "performed the autopsies himself" in many such cases and "[i]n others, documents show[,] he intervened to alter the findings of other pathologists." What follows is a series of assertions about plaintiff's actions in connection with several specific cases, including that of "a Brooklyn man who neighbors say was beaten by police officers" and that of Eleanor Bumpurs, "the 66-year old Bronx woman who was shot to death * * * by police officers trying to evict her." 1

The article, which also discussed the purported disarray in the Medical Examiner's office, reported on interviews conducted with several pathologists, who both described and characterized plaintiff's specific actions in relation to cases handled by the Medical Examiner's office. One pathologist who had worked with plaintiff asserted for example, that, in the case of the man who had allegedly been beaten by the police, plaintiff had changed the autopsy findings to state that death had resulted from a procedure performed by doctors after the incident rather than from a fractured skull. The pathologist was then quoted as asserting: "What Gross has done is bend over backwards to help the police" and "[i]t's weaseling." Another pathologist, who had not worked with plaintiff but who had been asked to review some of the disputed autopsy findings, was quoted as saying: "If he did these cases honestly, Dr. Gross is unbelievably incompetent"; "[i]f he has done this deliberately--and I believe he has--he may well be looking for a way out for the police." The tenor of the other articles cited in plaintiff's complaint was similar, with quotes from documents and individuals describing plaintiff's specific actions, disagreeing with his medical conclusions and drawing conclusions about his motives. The over-all thrust of the series was that plaintiff had issued false or misleading reports about deaths occurring within his jurisdiction in order to protect the police and that his conduct ranged from "highly suspicious" (article published Feb. 5, 1985) to "possibly illegal" (article published Jan. 28, 1985).

Before discovery had begun, defendants moved to dismiss the libel claims in plaintiff's complaint, arguing that the articles on which it was based conveyed only the opinion of its staff and their interviewees and were therefore not actionable. 2 2] The trial court agreed with defendants' position and on June 10, 1991 granted the requested relief.

The Appellate Division affirmed the trial court's determination, stressing that the "articles complained of report accusatory opinions together with a recitation of the facts upon which they are based" and that "[e]specially when attributed to a source, the average reader will recognize that criticisms, allegations and accusations are not statements of fact but rather expressions of opinion" (180 A.D.2d 308, 316, 587 N.Y.S.2d 293). The Court also rejected plaintiff's contention that the articles could not be characterized as protected opinion to the extent that they suggested he was guilty of criminal wrongdoing. In the Court's view, the allegations that plaintiff had "lied" in his professional conclusions regarding the causes of death in controversial cases and had "covered up" for misconduct by city police officers were too "[v]ague" to "amount to accusations of criminal misconduct" (id., at 317, 587 N.Y.S.2d 293). This Court subsequently granted plaintiff leave to appeal from the Appellate Division's order. We now reverse and hold that the complaint should have been sustained, since, in addition to the expressed opinions and conclusions, the articles contain defamatory assertions that a reasonable reader would understand to be advanced as statements of fact.


At the core of the dispute in this case is the much discussed distinction between expressions of opinion, which are not actionable, and assertions of fact, which may form the basis of a viable libel claim. The distinction has been the subject of considerable analysis and legal evolution in recent years (see, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1; Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906, 567 N.E.2d 1270, cert. denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713; Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550). Indeed, we revisited the question ourselves just one year ago (600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 589 N.Y.S.2d 825, 603 N.E.2d 930). Nonetheless, as the opinions below and the parties' submissions illustrate, there remain many unanswered questions and areas of uncertainty in this developing field of libel law.

The underlying principles are not in dispute. The Supreme Court's decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 injected a constitutional dimension into what had previously been regarded as a matter of State common law. In that case and others (e.g., Philadelphia Newspapers v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783; Curtis Publ. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094; see also, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789), the Court delineated the increased burden of proof that libel plaintiffs in the public arena must bear in order to assure the " 'unfettered interchange of ideas' " that is so necessary to the continued vitality of a government " 'responsive to the will of the people' " (New York Times Co. v. Sullivan, supra, 376 U.S. at 269, 84 S.Ct. at 720, quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498; and Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117). Additionally, in Greenbelt Publ. Assn. v. Bresler, 398 U.S. 6, 12, 14, 90 S.Ct. 1537, 1541, 1542, 26 L.Ed.2d 6, the Court recognized that there are constitutional restrictions on the "permissible scope" of defamation actions and, specifically, that evident "rhetorical hyperbole" is simply not actionable (see, Milkovich v. Lorain Journal Co., supra, 497 U.S. at 16, 110 S.Ct. at 2704; see also, Hustler Mag. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 879, 99 L.Ed.2d 41; Letter Carriers v. Austin, 418 U.S. 264, 284-286, 94 S.Ct. 2770, 2781-2782, 41 L.Ed.2d 745).

The focus in this appeal, which involves a preanswer dispute over the sufficiency of the complaint, is whether the articles published by defendants fall into a category that is actionable and, more specifically, whether the articles constitute the type of opinion statements that cannot, under the case law, form the basis of a defamation claim. While the Supreme Court has rejected the notion that there is a special categorical privilege for expressions of opinion as opposed to assertions of fact, it has recognized that "a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection" (Milkovich v. Lorain Journal Co., supr...

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