Lee v. City of Rochester

• Decision Date: 16 July 1993
• Parties: , 21 Media L. Rep. 2315 Walter LEE, Appellant-Respondent, v. CITY OF ROCHESTER, Captain Paul Chechak, individually and in His Capacity as Police Officer for the City of Rochester, Respondents, and Gannett Rochester Newspapers, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 564

600 N.Y.S.2d 564

195 A.D.2d 1000, 21 Media L. Rep. 2315

Walter LEE, Appellant-Respondent, v. CITY OF ROCHESTER, Captain Paul Chechak, individually and in His Capacity as Police Officer for the City of

Rochester, Respondents,

and

Gannett Rochester Newspapers, Respondent-Appellant.

Supreme Court, Appellate Division,

Fourth Department.

July 16, 1993.

Nira T. Kermisch, Rochester, for appellant-respondent.

Louis N. Kash by Anthony Obiiajulu, Rochester, for respondents, City of Rochester and Paul Chechak.

Nixon, Hargrave, Devans and Doyle by Carol Warren, Rochester, for respondent-appellant, Gannett Rochester Newspapers.

Before GREEN, J.P., and PINE, LAWTON, BOOMER and BOEHM, JJ.

MEMORANDUM:

After a police investigation of a shooting at the Club Bedrock bar, an article appeared in the Times-Union newspaper published by Gannett Rochester Newspapers (Gannett), relating that, according to defendant Paul Chechak (Chechak), a police officer employed by defendant City of Rochester (City), the bar had been closed about four years earlier "because of a drunken-driving accident in which the former owner lost his liquor license. The bar * * * used to be called Cisco's". Plaintiff, the former owner and operator of the bar called Cisco's, brought this defamation action against defendants, asserting that he had never been involved in a drunken driving accident, that he had never lost his liquor license and that he had never been charged with driving while intoxicated. Supreme Court granted Gannett's motion to dismiss the complaint pursuant to CPLR 3211(a)(7) and the motion of defendants Chechak and the City for summary judgment, pursuant to CPLR 3212.

In support of their motion, Chechak and the City contended that Chechak had a qualified privilege and that plaintiff had failed to show that Chechak's statements were motivated by malice. The threshold question is whether Chechak's statements, as reported, were protected by a qualified privilege. "A qualified privilege arises when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or social duty to speak, and the communication is made to a person having a corresponding interest or duty (see, Byam v. Collins, 111 NY 143, 150 " (Santavicca v. City of Yonkers, 132 A.D.2d 656, 657, 518 N.Y.S.2d 29; see also, Toker v. Pollak, 44 N.Y.2d 211, 219, 405 N.Y.S.2d 1, 376 N.E.2d 163).

On the record before us, it cannot be said, as a matter of law, whether Chechak's statements were protected by a qualified privilege. Not every statement made to a newspaper reporter by a police officer in the course of an investigation is protected by a qualified privilege. If Chechak's statements included gratuitous and irrelevant references to the prior incident at Cisco's, then the statements are not protected by a qualified privilege (see, Cheatum v. Wehle, 5 N.Y.2d 585, 594, 186 N.Y.S.2d 606, 159 N.E.2d 166; Bingham v. Gaynor, 203 N.Y. 27, 96 N.E. 84). Although it is undisputed that Chechak's statements were made in response to a reporter's question, the content of those statements is disputed, as is the question whether reference to a prior incident was germane to the shooting being investigated by the police. Those are questions of fact that must be resolved before it can be determined whether a qualified privilege existed, which is a question of law. Thus, Chechak and the City are not entitled to summary judgment.

Gannett's motion to dismiss, pursuant to CPLR 3211(a)(2), was also improperly granted. Because plaintiff is a private figure and the article was arguably within the sphere of legitimate public concern, Gannett's liability depends upon whether plaintiff can establish that Gannett failed to "utilize methods of verification that are reasonably calculated to produce accurate copy (see, Chapadeau v. Utica...