King v. Tanner

Decision Date14 February 1989
PartiesMatthew KING and Roslyn King, Plaintiffs, v. Amalia TANNER and Matthew King Agency, Inc., Defendants.
CourtNew York Supreme Court

Ball & Ferrari, Bronxville, for plaintiffs.

Muldoon & Horgan, New Rochelle, for defendants.

GERARD E. DELANEY, Justice.

In a case of first impression, this Court holds that the results of a DNA (deoxyribonucleic acid) test which indicates a probability of paternity of 99.993%, are sufficient as a matter of law to warrant a summary judgment dismissing a cause of action by plaintiff for slander wherein the purported slander is alleged to be a statement by the defendant/mother of a child, that plaintiff "is the father" of defendant's child and plaintiff fails to submit sufficient evidence in law to require a trial of a material issue of fact. The Court further holds that such DNA test results are in and of themselves sufficient to rebut the presumption of legitimacy in these circumstances and that common-law standards of proof are proper in the slander action.

The following facts are not in dispute:

Plaintiff, Matthew King, is married to co-plaintiff, Roslyn King.

At all relevant times, defendant, Amalia Tanner, was married to Hoyt Tanner (a non-party) and she conceived and bore a child, "Jane Doe" (the name of the child being fictitious for purposes of this decision) whom she claims (see affidavit dated December 2, 1988) is the natural and biological child of Matthew King as a result of their prior sexual relationship and that during their relationship she "did not engage in sexual relations with anyone else other than Matthew King".

Plaintiff Matthew King, and his wife commenced this action against defendant, Tanner, on or about June 9, 1988 alleging, inter alia, a cause of action for slander in that "on or about May 20, 1988, the defendant, in the presence of Geraldine Civitano, maliciously spoke and published of and concerning the plaintiffs the following false and defamatory words, to wit: "Matthew King is the father of '(Jane Doe)'. Such words were wholly false. Thereby the plaintiff was injured in his reputation in the sum of One Million and 00/00 ($1,000,000.00) Dollars".

Defendant, Tanner, answered, inter alia, as a second affirmative defense that: "Plaintiff's first cause of action fails to state a cause of action as truth is the absolute defense to a claim of defamation".

Defendant, Tanner, served a "Notice to Submit to Blood Examination" [See CPLR § 3121(a) ] on Matthew King on or about July 8, 1988, requiring him to "submit to a blood examination to include blood type and human leukocyte antigen tests at the offices of Eve Rosemarin, M.D....". However, the parties later agreed that defendant, Tanner and "Jane Doe" were "to have their blood samples drawn by a doctor ... and forwarded to Lifecodes, Inc. to be examined for blood type and human leukocyte antigen tests ... (inasmuch as) Matthew King had blood samples drawn at the Parental Testing Lab at New York University ... on July 6th ... Mr. King was directed to Parental Testing Lab by Lifecodes, Inc. and Lifecodes, Inc. has possession of the vials of Mr. King's blood for the appropriate testing." (Defendant's Exhibit C, letter of plaintiff's counsel, Anthony Ferrari, to defendant's counsel dated July 14, 1988).

Lifecodes, Inc. received the blood samples of Matthew King, Amalia Tanner and "Jane Doe", conducted their "DNA-Print Identification Test" on such samples and concluded, inter alia, that:

"The alleged father, Matthew King, is not excluded as the biological father of the child (Jane Doe). Based on the ... genetic testing results obtained by RFLP analysis (DNA Probes), the probability of paternity is 99.993% as compared to an untested, random man of the North American population. (Prior probability = 0.5) ... Probability of paternity 99.993%. Combined Paternity Index 15103.18 " (Emphasis added).

Based upon the affidavits, exhibits and law submitted, defendant moved, inter alia, for summary judgment dismissing the first cause of action for slander, alleging "there is no material issue of fact sufficiently denying the truth of the statement: "Matthew King is the father of (Jane Doe)". (Motion dated December 2, 1988).

In opposition to the motion, only an affidavit by Mr. Ferrari, plaintiff's counsel is submitted by which, in substance, only the following is submitted:

1. "Plaintiff reserves his right to a further blood test of defendant and her daughter";

2. "Defendant, Tanner, was married to Hoyt Tanner at the time she became pregnant and, therefore, he and "other males" ... should not be ruled out as (Jane Doe's) father";

3. "All the blood tests were unsupervised";

4. " 'DNA testing' is not recognized by the Courts of the State of New York and as such is not conclusive, admissable evidence ";

5. "Plaintiff 'has refused to admit the DNA in the Family Court matter' ". (There is apparently a Westchester County Family Court paternity proceeding filed by defendant, Tanner, under Docket No. P-1419/88, although this Court has no copies of any papers filed therein).

A. ALLEGATION OF SLANDER AND THE BURDEN OF PROOF--COMMON LAW STANDARD APPLIES.

Defendant, Tanner (a married woman at the time of conception) has allegedly stated in the presence of at least one other non-party that plaintiff (a married man) "is the father of" "Jane Doe", a child given birth to by defendant, Tanner: "Matthew King is the father of (Jane Doe)".

In order "to create liability for defamation, there must be ... a false and defamatory statement". Restatement (Second) of Torts, § 558 at 155 (1977). (Emphasis added). In general, "libel" embraces any "form of communication that has the potentially harmful qualities characteristic of written or printed words". Restatement (Second) of Torts, supra. at § 568(1).

A libel (or slander) per se is "a libel in which the fact of the defamation is clear from the publication itself". Hogan v. Herald Co., 84 A.D.2d 470, 480, 446 N.Y.S.2d 836 (4th Dept.1982); aff'd. 58 N.Y.2d 630, 458 N.Y.S.2d 538, 444 N.E.2d 1002; Blumenstein v. Chase, 100 A.D.2d 243, 246, 473 N.Y.S.2d 996 (2nd Dept.1984). See Matherson v. Marchello, 100 A.D.2d 233, 236, 473 N.Y.S.2d 998 (2nd Dept.1984).

However, unless the extrinsic fact is known that these parties were married to others at the time of conception, such an alleged statement is not slander per se but, rather, slander per quod inasmuch as the defamatory meaning is not apparent on its face. Aronson v. Wiersma, 65 N.Y.2d 592, 594-595, 493 N.Y.S.2d 1006, 483 N.E.2d 1138. (See discussion of libel per se and per quod in Matherson, supra. 100 A.D.2d at 236, 237, n. 3, 473 N.Y.S.2d 998). There is, of course, the extrinsic implied adultery as well. (cf. Meyers v. Somlo, 105 A.D.2d 1007, 482 N.Y.S.2d 156 [3rd Dept.1984] ). The primary procedural distinction between per se and per quod is that special damages ("special harm") need not be alleged in the former, however, is necessary in the latter. See Matherson, Id.; Nobel v. Creative Technical Services, 126 A.D.2d 611, 612-613, 511 N.Y.S.2d 51 (2nd Dept.1987); cf. Casamassima v. Oechsle, 125 A.D.2d 855, 856, 509 N.Y.S.2d 960 (3rd Dept.1986).

An argument might be made that the statement alleged to have been uttered by defendant Tanner is slander per se for the false allegation of fathering a child out of wedlock is one in which plaintiff's trade, business or profession might tend to be injured as well as his social reputation for chaste behavior. However, this Court deems such issue not raised and considers this case to concern slander per quod. Cf. Matherson, supra. 100 A.D.2d at 240, 473 N.Y.S.2d 998. Compare Civil Rights Law § 77 and Matter of Lisa M.U.U. v. Mario D.V.V., 78 A.D.2d 711, 432 N.Y.S.2d 411 (3rd Dept.1980) with Matter of Carter v. Carter, 58 A.D.2d 438, 435, 397 N.Y.S.2d 88 (2nd Dept.1977). (This Court notes that the previous case of Terwilliger v. Wands, 17 N.Y. 54, which held a man cannot be injured in his reputation by unchaste behavior is doubtful, on similar facts, to survive an equal protection argument).

Defendant Tanner, however, by way of her "Second Affirmative Defense" has pled "truth" as an "absolute defense" to such slander charge. It is correct that at common law "truth" is a defense to be pleaded by defendant and proved by him by a fair preponderance of the credible evidence. At common law, once the plaintiff had established the defamatory nature of the publication, a presumption of falsity attaches, [Cf. PROSSER ON TORTS § 116 at 798 (4th Ed.1971) Restatement (Second) of Torts § 581A(b) (1977) ] and the defendant carried the burden of proving in defense that the statement was true. See Sack, LIBEL, SLANDER, AND RELATED PROBLEMS, § III.3.1. (P.L.I., 1980); Rinaldi v. Holt, Rinehart, 42 N.Y.2d 369, 379-380, 397 N.Y.S.2d 943, 366 N.E.2d 1299; Bingham v. Gaynor, 203 N.Y. 27, 96 N.E. 84. Following a series of U.S. Supreme Court cases it is now clear that when an action is by a private figure and the purported libel is published on matters of public concern by a media defendant that plaintiff has the burden of showing both falsity and fault before recovering damages. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 1563, 89 L.Ed.2d 783; accord Mahoney v. Adirondack Publ. Co., 71 N.Y.2d 31, 37, 523 N.Y.S.2d 480, 517 N.E.2d 1365. (Similarly, Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-348, 94 S.Ct. 2997, 3010-3011, 41 L.Ed.2d 789; cf. Chapadeau v. Utica Observer Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569); if the plaintiff is a public official or figure and the speech is of public concern, then a plaintiff has the burden of showing "actual malice" in the making of the statement. New York Times v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686.

In this case we deal with a private defendant and plaintiff on matters not of public concern. The question of the burden...

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