Lee v. City of Rochester

• Decision Date: 19 February 1997
• Citation: 663 N.Y.S.2d 738,174 Misc.2d 763
• Parties: , 1997 N.Y. Slip Op. 97,540 Walter LEE, Plaintiff, v. CITY OF ROCHESTER, et al., Defendants.
• Court: New York Supreme Court

Page 738

663 N.Y.S.2d 738

174 Misc.2d 763, 1997 N.Y. Slip Op. 97,540

Walter LEE, Plaintiff, v. CITY OF ROCHESTER, et al., Defendants.

Supreme Court, Monroe County.

Feb. 19, 1997.

Linda Kingsley, Corporation Counsel (Charles A. LoFaso, of counsel), for City of Rochester, defendant.

Nixon, Hargrave, Devans & Doyle, Rochester (Loren Mills, of counsel), for Gannett Rochester Newspapers, defendant.

Nira T. Kermisch, Rochester, for plaintiff.

KENNETH R. FISHER, Justice.

Defendants Gannett and the City of Rochester separately move for summary judgment dismissing plaintiff's defamation complaint. Previous motions for summary judgment by Gannett, and to dismiss the complaint pursuant to CPLR § 3211 by the City, resulted in a denial by the Appellate Division. Lee v. City of Rochester, 195 A.D.2d 1000, 600 N.Y.S.2d 564 (4th Dept.1993). After discovery, summary judgment is sought again upon somewhat different grounds than those raised on the prior motions. For the reasons stated below, defendants' motions are granted.

A. Background

On June 13, 1991, an article appeared on the front page of the Rochester Times-Union, owned by Gannett, which described a shooting spree the night before at a downtown dance club. According to the article, a lone gunman "sprayed" the club with gunfire, injuring nine people before he fled. Brief accounts of the victims' injuries were provided in the article, which quoted Rochester Police Captain Paul Chechak of the Clinton Section on a few particulars of the crime. The owner of the club, not the plaintiff, was quoted in explanation of the busy weeknight business of the club and her procedures for admittance of patrons over age 25 on those weeknights.

Buried in the middle of this brief account of the shooting spree was a three-sentence paragraph which gave a cryptic account of the club's prior history. The first sentence stated that the club "has been open since December." The second sentence stated that the club was closed "four years" ago "because of a drunken-driving accident in which the former owner lost his liquor license." The third sentence stated that the club closed according to current practice at 1:30 a.m., and that it "used to be called Cisco's."

Plaintiff alleges without contradiction that he was the "former owner" and that he was widely known in the community as "Cisco." He alleges that the reference to "a drunken-driving accident" as the cause of his loss of a liquor license was false. In fact, there was a 15-day suspension of the liquor license, but that occurred solely because of plaintiff's possession of an unregistered firearm, not by reason of any drunken driving accident. Moreover, although there was a hit and run accident in 1979, which provoked a city hearing in connection with plaintiff's amusement license, no real evidence of a connection between the accident and Cisco's came out at It is clear enough from the deposition testimony that the officer who testified against plaintiff in 1980, Sgt. Strassner, was the primary source of Capt. Chechak's account to the reporter that the bar had closed four years earlier on account of a drunken-driving accident. Other officers had told him the same thing in Clinton Section briefings after the new establishment opened. Plaintiff claims in his motion papers that Chechak denied telling the reporter what was ascribed to him in the article, but Chechak's deposition testimony acknowledged that he told the media of the incident, although Chechak maintained that it was the amusement license that was lost, not the liquor license. Strassner also testified that he told Chechak of the accident and its "causal connection" to Cisco's loss of an amusement license. The reporter was the only witness who claimed that Chechak referred to the liquor license.

the hearing. The accident occurred a block away, and involved a victim who never, according to plaintiff (and this fact is disputed by defendants), patronized Cisco's. The amusement license was suspended 15 days in 1980, because of, as plaintiff contends, an allegedly racist police officer's testimony that the Cisco's establishment caused undue traffic congestion. No party contends that any public controversy attended the suspension, or indeed that any news coverage occurred. Plaintiff's charge of racism evidently is made for the first time in the context of this proceeding, because he offers no evidence of a prior complaint of racism.

Plaintiff was, fully nine years before publication, i.e., from 1979-82, well known as Cisco and he had ingenious ways of promoting his business. Plaintiff's affidavit, however, establishes without material contradiction that he "never advertised myself, I never promoted myself, and all I did was advertise the business ..." (emphasis supplied). He adds that, "[f]rom 1982 to 1991 [when the article appeared], I did not advertise the business, ... did not engage in politics, ... did not engage in political activity, and only tried to make a living."

B. Whether Lee is a public figure

Defendants contend that plaintiff is a public figure, and that therefore he must, in response to the motions for summary judgment, raise an issue of fact whether defendants defamed him with "actual malice," in the sense that the defendants knew of the falsity or acted in reckless disregard of the truth. New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); James v. Gannett Company, 40 N.Y.2d 415, 421, 386 N.Y.S.2d 871, 353 N.E.2d 834 (1976). To take advantage of this higher standard of fault, defendants point to plaintiff's high profile effort to promote his business. But they fail to grapple with the primary obstacle to this argument, which is that no public controversy attended plaintiff's self-promotion efforts--at least defendants adduce no evidence of such a public controversy sufficient to create an issue of fact--and plaintiff closed his business fully nine years prior to publication of the false article. Plaintiff avers without contradiction that no promotion under the Cisco name, or any other name for that matter, was undertaken by him in the interim. Accordingly, defendants cannot take advantage of the higher, constitutional or "actual malice" standard, and (on Gannett's motion) plaintiff need only adduce evidence in admissible form creating an issue of fact that Gannett "acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975). See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (requiring states to establish fault standards for press/media defendants in private defamation suits arising out of publications involving a matter of public concern). Because defendants urge the public figure categorization of plaintiff in quite insistent terms, a careful evaluation of their arguments is made necessary.

The public figure classification, which triggers the actual malice standard of New York Times, is defined as follows:

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 [94 S.Ct. 2997, 3009-10, 41 L.Ed.2d 789], the court defined public figures James v. Gannett Company, 40 N.Y.2d at 421-22, 386 N.Y.S.2d 871, 353 N.E.2d 834. There are, generally, two categories of public figures recognized in the cases: (1) public figures for all purposes who have "general fame [and] notoriety in the community," Gertz, 418 U.S. at 351-52, 94 S.Ct. at 3013, and (2) so-called "vortex" public figures who "[voluntarily injected] themselves [into a] public controvers[y] in order to influence the resolution of the issues involved." Gertz, 418 U.S. at 345. A third category, "involuntary public figures" who are "involved in or directly affected by the actions of officials" because of an arrest or some other similar event, is described in the literature, L. Tribe, American Constitutional Law, § 12-13, at 880 (2d ed. 1988), and has some recognition in the cases. Gertz, 418 U.S. at 345, 94 S.Ct. at 3009-10; Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1551-52 (4th Cir.1994).

                as persons who "have assumed roles of especial prominence in the affairs of society.  Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.  More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.  In either event, they invite attention and comment."   See, also, Curtis Pub. Co. v. Butts, 388 U.S. 130, 164 [87 S.Ct. 1975, 1996, 18 L.Ed.2d 1094], supra [concurring opn. of Warren, Ch.J.]
                

We are concerned here with the second or "vortex" category of public figure, the one described in James v. Gannett Company as one who " 'has taken an affirmative step to attract public attention,' " and who "voluntarily entered the public forum to influence public opinion," thereby "enjoy[ing] significantly greater access to the channels of communication than a private person." Howard v. Buffalo Evening News, Inc., 89 A.D.2d 793, 453 N.Y.S.2d 516 (4th Dept.1982) (quoting James, 40 N.Y.2d at 422, 386 N.Y.S.2d 871, 353 N.E.2d 834). See Curry v. Roman, 217 A.D.2d 314, 319, 635 N.Y.S.2d 391 (4th Dept.1995); Park v. Capital Cities Communications, Inc., 181 A.D.2d 192, 197, 585 N.Y.S.2d 902 (4th Dept.1992). The reported cases on this issue often include stipulations that a plaintiff is, or is not, a public figure. E.g., Freeman v. Johnston, 84 N.Y.2d 52, 56 n. 4, 614 N.Y.S.2d 377, 637 N.E.2d 268 (1994); 2 N.Y. PJI 3:23, comment at 109-10 (1997 Cum.Supp.) (collecting cases). Therefore, they may not be consulted for full guidance on the issue in this case, because the parties sharply contest whether plaintiff is a public figure.

Although the question of a plaintiff's status as a...