Kent v. City of Buffalo

• Decision Date: 18 November 1971
• Citation: 29 N.Y.2d 818,327 N.Y.S.2d 653,277 N.E.2d 669
• Parties: , 277 N.E.2d 669 Florence KENT, as Guardian ad Litem of Ronald Kent and Florence Kent, Individually, Respondent, v. CITY OF BUFFALO, New York, Defendant, and WBEN, Inc., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 653

327 N.Y.S.2d 653

29 N.Y.2d 818, 277 N.E.2d 669

Florence KENT, as Guardian ad Litem of Ronald Kent and Florence Kent, Individually, Respondent, v. CITY OF BUFFALO, New York, Defendant, and WBEN, Inc., Appellant.

Court of Appeals of New York.

Nov. 18, 1971.

Appeal from the Supreme Court, Appellate Division, Fourth Department, 36 A.D.2d 85, 319 N.Y.S.2d 305.

Raichle, Banning, Weiss & Halpern, Buffalo (Frank G. Raichle, Ralph L. Halpern, Alger A. Williams, Buffalo, of counsel), for defendant-appellant.

Moot, Sprague, Marcy, Landy & Fernbach, Buffalo (Courtland R. LaVallee, Buffalo, of counsel), for plaintiff-respondent.

Actions were brought against city for false arrest and against television of radio station for libel. The Supreme Court, Erie County, Gilbert H. King, J., 61 Misc.2d 142, 304 N.Y.S.2d 949, denied recovery against the city but granted recovery against the television and radio station which appealed.

The Appellate Division affirmed on the ground that the evidence sustained finding of malice on part of television station which on the day of robbery involving four participants telecast filmed account of robbery which showed three actual participants and plaintiff at police station while handcuffs were being removed after plaintiff's arrest in vicinity of robbery but did not show the fourth participant who had been captured and identified before telecast was made and which repeated substantially the same telecast on the following day without any exculpating change of script or picture. The television and radio station appealed.

In the Court of Appeals the station urged that the established truth of broadcast was a complete defense and that there was no proof of ordinary negligence much less proof of malice on part of station. The plaintiff urged there was sufficient evidence to show that station had libeled the plaintiff and that the station had acted with such reckless and wanton disregard for plaintiff's public or private rights as to constitue actual malice.

Order reversed, without costs, and the complaint dismissed in the following memorandum: We approve the rationale of the dissenting opinion at the Appellate Division and write only to note that upon application of the rule of Rosenbloom v. Metromedia, 403 U.S. 29, 52, 91 S.Ct. 1811, 29 L.Ed.2d 296, decided subsequent to the Appellate Division decision, we find the evidence too insubstantial to constitute 'clear and convincing proof that the defamatory falsehood was...