Hogan v. Herald Co.

• Decision Date: 29 January 1982
• Citation: 84 A.D.2d 470,446 N.Y.S.2d 836
• Parties: , 8 Media L. Rep. 1137 Michael J. HOGAN, Respondent, v. The HERALD COMPANY d/b/a The Syracuse Herald Journal, and Robert Sperber, Appellants, and William Roehm, William Slattery and William Mahoney, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 836

446 N.Y.S.2d 836

84 A.D.2d 470, 8 Media L. Rep. 1137

Michael J. HOGAN, Respondent, v. The HERALD COMPANY d/b/a The Syracuse Herald Journal, and Robert Sperber, Appellants and William Roehm, William Slattery and William Mahoney, Defendants.

Supreme Court, Appellate Division Fourth Department.

Jan. 29, 1982.

Bond, Schoeneck & King, Syracuse, for appellants; S. Paul Battaglia, Syracuse, of counsel.

Carl T. Putzer, North Syracuse, for respondent.

Before SIMONS, J.P., and CALLAHAN, DOERR, DENMAN and MOULE, JJ.

SIMONS, Justice Presiding.

Plaintiff brings this action seeking $2 million compensatory and punitive damages claiming injury as the result of a defamatory news article written by defendant Sperber and published by his employer, defendant Herald Company, in its newspaper, The Syracuse Herald-Journal. The article repeated a false claim that plaintiff had been arrested for criminal mischief. Defendants moved for summary judgment and the motion was denied as to the libel cause of action. ¹ They appeal, contending that Special Term erred in that (1) the news article was a matter of legitimate public concern and privileged because in publishing it defendants did not act in "a grossly irresponsible manner" within the rule of Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569, (2) the article was privileged under the doctrine of "neutral reportage" (see Edwards v. National Audubon Society, 556 F.2d 113, cert. den. sub nom. Edwards v. New York Times Co., 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498) and (3) plaintiff has failed to allege special damages in his complaint or motion papers and, therefore, he may not recover compensatory or punitive damages unless he proves "actual malice" as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. In support of this position defendants cite France v. St. Clare's Hosp. & Health Center, 82 A.D.2d 1, 441 N.Y.S.2d 79.

Special Term held that there are questions of fact concerning the culpability of defendants' conduct under the Chapadeau rule which require a trial. We agree. The order should be modified, however, to grant partial summary judgment to defendants, dismissing plaintiff's claims for punitive damages. Punitive damages may not be recovered in a libel action against the publisher or broadcaster of a defamatory falsehood unless plaintiff establishes that the defendant acted with "actual malice" (Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789; Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 195, 199, 379 N.Y.S.2d 61, 341 N.E.2d 569).

At the time this cause of action arose plaintiff was an 18 year-old student. His father, Girard M. Hogan, was the incumbent Supervisor of the Town of Cicero in Onondaga County and was seeking re-election. Mr. Hogan was opposed in the primary and the general elections by defendant Roehm, a Town Councilman who also had been the Town Board Liaison to the Police Department. Defendant Slattery was the Town's Chief of Police.

On August 20, 1979 an automobile owned by defendant Mahoney was damaged while parked in front of a bar in Cicero. Mahoney filed a complaint with the police, accusing plaintiff of causing the damage. The matter was investigated by Chief of Police Slattery and on August 21, 1979 he issued an appearance ticket charging plaintiff with criminal mischief in the fourth degree. That same day affidavits were filed with the Police Department stating that plaintiff had not damaged Mahoney's vehicle, and apparently the appearance ticket was never served on plaintiff. He has never been arrested.

On October 8, 1979 Roehm was removed as Liaison to the police and that removal led to Sperber's article which appeared in the Syracuse Herald-Journal on October 9, 1979. In the article it was stated that Roehm claimed that he had been removed as Liaison to the police for "political reasons and possibly because the town police had arrested Hogan's son last month." The article continued:

Michael Hogan, 18, was arrested on a criminal mischief charge at the Grape N Grog bar on Brewerton Road last month after he and some friends allegedly damaged a car, Roehm said and the police department confirmed. Town Justice Harvey Chase said that the case is due to be heard in his court at a future date. A police official said Hogan called the department several times after the arrest.

Hogan today denied any attempts to intervene in the matter, adding he isn't even aware his son is facing trial, saying he's seen nothing in writing to that effect.

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* * *

Hogan's son would not comment on the arrest, other than to say 'It was all a joke,' adding 'That was taken care of.' He later said he did not mean to imply his father had intervened.

The article also reported Hogan's statement that Roehm was removed as Liaison because of increased costs in the Police Department and the increased crime rate in the town since Roehm had been in office.

On October 10 a second article appeared in defendants' paper in which Mr. Hogan denied that plaintiff had been arrested, although he acknowledged that a formal complaint had been issued. He also gave his version of the Police Department's investigation of the matter. In giving the story's background, it stated that the previous article had "quoted" Roehm's charge.

Defendant Sperber alleges in his moving papers that in preparing his story he spoke with Roehm and obtained the charges from him. He stated that he then called plaintiff's father who told him that Roehm was removed because of the manner in which the Police Department had been operated; he called the Chief of Police and was told that plaintiff had been arrested on the criminal mischief charge and that Mr. Hogan had called him "on more than one occasion" about the matter; and he contacted the Cicero Town Justice and asked him "about the pending criminal matter." The Town Justice told him, he said, that the "case" was due to be heard in his court later that month. Sperber stated that he did not recall whether he asked the Town Justice if plaintiff had been arrested, but he assumed by the Justice's answer that he was speaking about the criminal mischief charge. Sperber then contacted plaintiff and his father once again and obtained the answers and quotations from them which appeared in the news article. Sperber's affidavit implies that plaintiff did not deny the arrest when called, but the record does not support that claim.

Plaintiff submitted the affidavit of his father in opposition to the motion. Mr. Hogan alleged that Sperber's article was inspired by political vindictiveness and malice directed against him not only by Roehm and Slattery, whom he claimed Sperber knew to be political allies, but by Sperber himself. He stated that when Sperber had called him before writing the article he told Sperber that plaintiff had not been arrested, that Sperber should not print that he had been and that he should check the public records first.

The libel is described generally in the complaint and the relatively short offending article has been annexed to it, thereby satisfying reasonable notice pleading requirements and the provisions of section 3016, subd. (a) of the CPLR (see CPLR 3014; Cabin v. Community Newspapers, 50 Misc.2d 574, 579, 270 N.Y.S.2d 913 ). As noted, the statement that plaintiff was arrested is false. Further than that, the article implies that plaintiff and his father "fixed" the arrest and it is, therefore, "reasonably susceptible" of a defamatory interpretation (see James v. Gannett Co., Inc., 40 N.Y.2d 415, 419-420, 386 N.Y.S.2d 871, 353 N.E.2d 834). Since it exposes plaintiff to "public contempt, ridicule, aversion and disgrace", it is actionable as libel per se unless privileged.

I

Defamation, consisting of the twin torts of libel and slander, is the invasion of the interest in a reputation and good name. Under traditional common-law rules, one guilty of defaming another is strictly liable for the resulting damages. Strict liability collides with constitutional principles of free speech and press, however, and the courts' attempts to balance the competing concerns of the individual in his good name and of society to information and news has resulted in a major recasting of the law of libel as it relates to those gathering and disseminating the news. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct 710, 11 L.Ed.2d 186, supra), the Supreme Court stated that broad dissemination of the news and robust public debate were essential to a free society and a democratic government, that publishers and broadcasters were an essential part of the information system and should be encouraged to participate in the debate on public issues and that strict liability inhibited such participation. Accordingly, it held that the Constitution limits a state's power to award damages in a libel action brought by a public official against his critics unless he proves that the statement was made with "actual malice", i.e., knowledge of its falsity or reckless disregard of whether or not it was false. ² Subsequently, the court considered the problem of strict liability for libel in an action involving a private individual. It recognized that private individuals who have not placed themselves in the public spotlight and have limited access to the media for self-help are more vulnerable than public officials and public figures and, conversely, that they are more deserving of protection because the state has relatively less interest in the free dissemination of news about them. The court held, therefore, that the states were free to "define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual," so long as they did not impose liability without fault (Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, supra). ³ New York...