Hennigan v. Buffalo Courier Exp. Co., Inc.

• Decision Date: 23 December 1981
• Citation: 85 A.D.2d 924,446 N.Y.S.2d 767
• Parties: Robert HENNIGAN, Appellant, v. BUFFALO COURIER EXPRESS COMPANY, INC., Douglas L. Turner, Executive Editor, John Pauly, Richard Roth, Terrance P. McElroy and S. J. LaSpada, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 767

446 N.Y.S.2d 767

85 A.D.2d 924

Robert HENNIGAN, Appellant, v. BUFFALO COURIER EXPRESS COMPANY, INC., Douglas L. Turner,

Executive Editor, John Pauly, Richard Roth,

Terrance P. McElroy and S. J. LaSpada,

Respondents.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 23, 1981.

LoTempio & Brown by Patrick J. Brown, Buffalo, for appellant.

Falk, Siemer, Glick, Tuppen & Maloney, Phillips, Lytle, Hitchcock, Blaine & Huber by Alexander C. Cordes, Buffalo, for respondents.

Before DILLON, P. J., and HANCOCK, DOERR, DENMAN and SCHNEPP, JJ.

MEMORANDUM:

Plaintiff is a Buffalo police officer who was erroneously identified in a series of articles in the Buffalo Courier Express as a participant in a vicious beating of a city employee. In his defamation action against the newspaper, its former Executive Editor, and present and former reporters, he submitted a series of interrogatories. Defendants answered some interrogatories but moved to strike certain others on various grounds. Plaintiff brought a cross motion to compel more responsive answers.

With respect to those interrogatories as to which there was a claim of privilege, Special Term correctly struck the interrogatories. New York's "shield law" (Civil Rights Law, § 79-h) provides defendants with a privilege against disclosure of both news and news sources (see Greenberg v. CBS, Inc., 69 A.D.2d 693, 708, 419 N.Y.S.2d 988); nevertheless, such privilege may be invoked only after there has been established an express or implied agreement of confidentiality (Matter of Dack 101 Misc.2d 490, 421 N.Y.S.2d 775; Matter of Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 442). Special Term properly ordered stricken those interrogatories as to which defendant asserted the privilege with an accompanying allegation of a promise of confidentiality. With respect to interrogatory No. 6a directed to defendant Roth, however, although defendant asserted the privilege, he did not claim that he had an agreement of confidentiality with his source. The "balancing of interests" test was employed prematurely by Special Term. The confidential relationship with the source must first be established in order to determine the interest to be balanced against that of a civil litigant. Full disclosure is the general rule and the burden of showing immunity from disclosure is on the party asserting it (Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857; Mold Maintenance Serv. v. General Acc. Fire & Life Assur. Corp., 56 A.D.2d 134, 135, 392 N.Y.S.2d 104). Inasmuch as defendant Roth did not meet that burden with respect to interrogatory 6a, he must be compelled to answer.

Plaintiff seeks to compel defendant Pauly to submit more responsive answers to the interrogatories directed to him, to most of which he replied that he had "no current recollection". This was a major news story commanding daily headlines and...