Malerba v. Newsday

• Decision Date: 10 July 1978
• Citation: 406 N.Y.S.2d 552,64 A.D.2d 623
• Parties: , 4 Media L. Rep. 1110 Dennis MALERBA, Respondent-Appellant, v. NEWSDAY, INC., et al., Appellants-Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 552

406 N.Y.S.2d 552

64 A.D.2d 623, 4 Media L. Rep. 1110

Dennis MALERBA, Respondent-Appellant, v. NEWSDAY, INC., et al., Appellants-Respondents, et al., Defendants.

Supreme Court, Appellate Division,Second Department.

July 10, 1978.

Townley & Updike, New York City (Andrew L. Hughes and Neil J. Rosini, New York City, of counsel), for appellants-respondents.

Bruce Miles Sullivan, Stony Brook (Timothy B. Glynn, Stony Brook, of counsel), for respondent-appellant.

Before LATHAM, J. P., and DAMIANI, MARGETT and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for libel, the appeal is from so much of an order of the Supreme Court, Suffolk County, entered January 23, 1978, as denied the defendants-appellants' cross motion for summary judgment. Plaintiff purports to cross-appeal from that part of the same order which denied his motion to dismiss the defendants' first and second affirmative defenses.

Cross appeal dismissed, without costs or disbursements. The cross appeal was not perfected in accordance with the rules of this court (see Howe Ave. Nursing Home v. Nafus, 54 A.D.2d 686, 387 N.Y.S.2d 272).

Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and cross motion granted.

The plaintiff, a police patrolman in Suffolk County, alleges that he was libelled by an article written by defendant Carter and published in defendant Newsday on November 2, 1976. The defendants' cross motion for summary judgment was denied by Special Term. Although summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues of fact (Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853), we feel that the remedy is appropriate in this case.

The Newsday article stated, inter alia, that in September, 1976 the plaintiff and another patrolman stopped a car on the Long Island Expressway because the driver appeared to be drunk. They questioned the driver and then dragged out the lone passenger, who was a paraplegic, and threw him to the ground, causing serious injuries. The article also stated that it was Robert Frankfort, an attorney with the law firm that represented the injured passenger, who had charged that the plaintiff had been one of the officers involved in the incident. In fact, Frankfort had not specifically named the officers who injured his client. On November 1, 1976 he had informed defendant Carter over the telephone that two appearance tickets had been signed by the plaintiff. He did not inform Carter that the appearance tickets were dated September 24, 1976, the day after the incident. Carter sought to confirm the story by calling Robert Rapp, the Deputy Police Commissioner for the Suffolk County Police Department. Rapp told him that he had received a complaint from the Suffolk County Human Rights Commission relating to the incident in question. The complaint did not name the plaintiff, but his badge number appeared on it. Carter then tried to contact the plaintiff to further confirm the story, but he was unsuccessful. At this point Carter wrote the story, and it appeared in print on the following day. The plaintiff later claimed that he had been on desk duty at the precinct on September 24, 1976, the day after the incident, and had issued and signed the appearance tickets, but that he had not participated in any of the events described in the Newsday article. In response to a request of plaintiff's counsel to retract the reference to the plaintiff in the article, Newsday published a correction on ...