Hoffman v. Landers

• Decision Date: 30 January 1989
• Citation: 537 N.Y.S.2d 228,146 A.D.2d 744
• Parties: Alan HOFFMAN, Respondent, v. Lynn LANDERS, Defendant, and James Druker, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 228

537 N.Y.S.2d 228

146 A.D.2d 744

Alan HOFFMAN, Respondent, v. Lynn LANDERS, Defendant and James Druker, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 30, 1989.

Paula Schwartz Frome, Garden City, for appellant.

Brand & Brand, Garden City (Ray M. Brand, of counsel), for respondent.

Before BRACKEN, J.P., and RUBIN, SULLIVAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for libel, the defendant James Druker appeals from an order of the Supreme Court, Nassau County (Balletta, J.), dated August 31, 1987, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified by deleting the provision thereof which denied that branch of the appellant's motion which was for summary judgment dismissing the first cause of action insofar as asserted against him and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

On August 26, 1984, an article by reporter Lawrence Levy entitled "License Suspension in '78 Murder Case" appeared in the newspaper Newsday. The article was based in part on an interview with the appellant, James Druker, who was appellate counsel for one Robert Arner, who was convicted in Florida in 1980 of first degree murder in the death of his wife. The subject of the article was the license suspension of a private investigator arising out of services he performed with regard to the murder case for Alan Hoffman, the plaintiff herein and the brother of the deceased. Hoffman paid for the investigation services from funds belonging to a partnership that was partly owned by the estate of the deceased. The article contained two statements concerning the substantial sums paid to the private investigator by Hoffman. The first statement, which forms the basis of the first cause of action, consisted of reporter Levy's words, as follows:

"Neither the state nor the judge rendered any opinion on what work Donnell did, or if it was worth $100,000. But Landers and Arner's appeal attorney James Druker believe[s] the money may have been used to pay witnesses to testify against Arner."

The second statement, which forms the basis for the second and final cause of action, consisted of the appellant's own words, as follows:

"At the very least it would seem an estate got milked here and at the very most the estate was paying for witnesses to come in and testify at a murder trial * * * Whether it was to be truthful or untruthful, I don't know."

In October 1984 the plaintiff commenced this defamation action against the appellant and Lynn Landers, a friend of Robert Arner who hired Druker on Arner's behalf. A prior motion by the appellant for summary judgment was denied by order of the Supreme Court, Nassau County (Burke, J.), dated April 3, 1985. A second motion for summary judgment, made by the appellant in April 1987 is the subject of this appeal. By order dated August 31, 1987, the Supreme Court, Nassau County (Balletta, J.), denied the motion essentially based on the fact that "[t]he determination made by Justice Burke is res judicata".

At the outset we note that while the Supreme Court was compelled to deny the appellant's second motion for summary judgment by the rule of the law of the case (Baron v. Baron, 128 A.D.2d 821, 513 N.Y.S.2d 744; Atlas Feather Corp. v. Pine Top Ins. Co., 122 A.D.2d 241, 505 N.Y.S.2d 436; Freeze Right Refrig. & Air Conditioning Servs. v. City of New York, 101 A.D.2d 175, 475 N.Y.S.2d 383), this court is not so constrained and is free to decide the motion on its merits (Rock v. Capitol Air, 128 A.D.2d 691, 513 N.Y.S.2d 191; Tischler v. Key One Corp., 67 A.D.2d 886, 413 N.Y.S.2d 710).

The appellant's first contention is that the allegedly defamatory statements were constitutionally protected expressions of opinion which may not give rise to a private damage action.

"Opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions, provided that the facts supporting the opinion are set forth" (Rinaldi v. Holt, Rinehart, & Winston, 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456). An exception to this rule is an accusation of criminal activity which, even in the form of opinion, is not constitutionally protected (Rinaldi v. Holt, Rinehart, & Winston, supra ). The question of whether a given statement is an expression of opinion is one of law for the court and one which must be determined on the basis of what the average person hearing or reading the communication would take it to mean (Steinhilber v. Alphonse, 68 N.Y.2d 283, 290, 508 N.Y.S.2d 901, 501 N.E.2d 550...