Mitchell v. Herald Co.

• Decision Date: 27 May 1988
• Citation: 529 N.Y.S.2d 602,137 A.D.2d 213
• Parties: , 15 Media L. Rep. 1613 Stephen L. MITCHELL, Respondent-Appellant, v. The HERALD COMPANY, as publisher of the Syracuse Herald Journal, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 602

529 N.Y.S.2d 602

137 A.D.2d 213, 15 Media L. Rep. 1613

Stephen L. MITCHELL, Respondent-Appellant, v. The HERALD COMPANY, as publisher of the Syracuse Herald Journal, Appellant-Respondent.

Supreme Court, Appellate Division,

Fourth Department.

May 27, 1988.

Bond, Schoeneck & King, Syracuse, for appellant-respondent; S. Paul Battaglia, of counsel.

Scott D. Rodman, Rochester, for respondent-appellant.

Before DENMAN, J.P., and GREEN, PINE, BALIO and DAVIS, JJ.

DENMAN, Justice Presiding.

In this libel action defendant, The Herald Company, was granted summary judgment dismissing the complaint. It asks that we modify the order to impose sanctions, including costs and attorney's fees, on plaintiff and his attorney for instituting and pursuing a frivolous claim (CPLR 8303-a). We find that the libel claim stated herein is lacking in merit and, because plaintiff and his attorney knew or should have known that it lacked merit, defendant is entitled to sanctions.

Plaintiff commenced this action for libel against defendant, publisher of the Syracuse Herald Journal, alleging injury to his reputation as a result of an article published on August 27, 1985. Plaintiff complains of eight statements contained in the article and, in addition, complains of a headline, "Woman Raped," pertaining to an unrelated article appearing under the article about plaintiff. The article about plaintiff described an argument between plaintiff and several neighbors followed by an altercation between plaintiff and two police officers who responded. The article recounted that, upon the arrival of police, plaintiff approached one of his neighbors in a threatening manner; that a female police officer stepped between them; that plaintiff stepped on the officer's foot and challenged her; that the officers arrested plaintiff; that plaintiff punched the female officer, breaking her nose, and pushed the other officer, injuring his wrist; and that plaintiff then ran off before being subdued and charged with two counts of assault, disorderly conduct, and resisting arrest. ¹ The article was written by defendant's reporter, Jeffrey Stage, after reviewing various police reports. Read together, the police reports, sworn accounts of the incident and follow-up investigation by at least three police officers, support the factual statements contained in the newspaper article.

The gravamen of plaintiff's claim, as amplified by his answers to interrogatories, is that the story is false and that defendant was grossly irresponsible in reporting the incident. With respect to the issue of truth, plaintiff contends that he is innocent of the charges and that the statements contained in the police reports and newspaper article are false. With respect to the allegation of gross irresponsibility, plaintiff contends that the reporter was at fault in relying solely on the reports of the police officers and in failing to interview other eyewitnesses to the incident who "would have told the reporter(s) that the police version of the incident was not true".

In its answer, defendant denied the allegations of the complaint and raised the affirmative defenses of truth and constitutional privilege ( Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569). Following service of the answer, defendant's attorney wrote to the plaintiff's attorney and asked him to discontinue the frivolous suit or risk the imposition of sanctions. Plaintiff's counsel did not respond to the letter.

Defendant moved for summary judgment and for sanctions against plaintiff and his attorney for prosecuting a frivolous action. The motion was supported by the affidavits of defendant's counsel and the author of the newspaper article. As the basis for summary judgment, defendant argued that, in light of his criminal conviction, plaintiff was collaterally estopped from showing that the article was false. Additionally, defendant argued that it was entitled to summary judgment because it did not act with gross irresponsibility in publishing the story. The reporter averred that the story was based entirely upon his review of several sworn police reports; that, in his experience, such reports are generally highly reliable; and that he had "no basis whatsoever to doubt the accuracy" of the reports. The basis for defendant's motion for sanctions was similar. Defendant contended that plaintiff and his attorney should have known that the claim was meritless in view of the dispositive effect of the criminal conviction on the issue of truth; plaintiff's inability to demonstrate that defendant was grossly irresponsible in relying on sworn police reports; and plaintiff's inability, as a convicted felon, to show injury to reputation.

Plaintiff opposed the motion by affidavit of his attorney, who basically reiterated plaintiff's claim of innocence and merely argued that defendant had not demonstrated its entitlement to summary judgment. In opposition to the motion for sanctions and to refute defendant's claim that plaintiff and his attorney were or should have been aware of the lack of merit of the claim, plaintiff's attorney averred that "plaintiff had no access to any factual allegations by defendants [sic ] of the source of their information for said article." Elsewhere in his affidavit, however, plaintiff's counsel averred that he "was the trial attorney for Stephen Mitchell and is personally familiar with all the facts and circumstances of the criminal prosecution and conviction * * * has personally investigated the circumstances of the underlying incident and believes that * * * this action was brought in good faith and is not frivolous." Without indicating the basis for its decision, the court granted defendant's motion for summary judgment dismissing the complaint, but denied its motion for sanctions.

The court properly granted summary judgment to defendant. Since the news article concerned a matter within the sphere of legitimate public concern, defendant was required to demonstrate that its reporter was not grossly irresponsible in writing the article ( Chapadeau v. Utica Observer-Dispatch, supra, at 199-200, 379 N.Y.S.2d 61, 341 N.E.2d 569). Defendant demonstrated its entitlement to judgment as a matter of law on that issue and, in addition, on the issue of truth ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Chapadeau v. Utica Observer-Dispatch, supra ). The reporter relied on the sworn reports of three or four officers who were either involved in the incident or investigated it. A newspaper reporter is entitled to rely on official reports by law enforcement officers, including unsworn reports (see, Carlucci v. Poughkeepsie Newspapers, 88 A.D.2d 608, 450 N.Y.S.2d 54, affd. 57 N.Y.2d 883, 456 N.Y.S.2d 44, 442 N.E.2d 442; Robart v. Post-Standard, 74 A.D.2d 963, 425 N.Y.S.2d 891, affd. 52 N.Y.2d 843, 437 N.Y.S.2d 71, 418 N.E.2d 664; Grobe v. Three Vil. Herald, 69 A.D.2d 175, 420 N.Y.S.2d 3, affd. 49 N.Y.2d 932, 428 N.Y.S.2d 676, 406 N.E.2d 491), unless the reporter is aware of the probable falsity of the reports or has some reason to doubt their accuracy (Robart v. Post-Standard, supra ). Here, the reporter averred that he knew such reports to be generally reliable and that there were no indications that the reports might be false. In view of defendant's subsequent conviction on the charges arising out of the incident, it is beyond dispute that the police reports were accurate. Because a plaintiff in a libel action is required to prove the falsity of the publication where it involves a matter of public concern ( see, Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783), the fact that the article is true bars plaintiff's claim. Thus, defendant has shown its entitlement to judgment as a matter of law on plaintiff's libel claim.

In opposition to the motion, plaintiff failed to raise a triable question of fact on the issues of truth or gross irresponsibility (see, Chapadeau v. Utica Observer-Dispatch, supra ). Plaintiff submitted only an attorney's affidavit, which was not competent to establish the falsity of the news article ( Zuckerman v. City of New York, supra, 49 N.Y.2d at 563, 427 N.Y.S.2d 595, 404 N.E.2d 718). In addition, plaintiff's counsel failed to show that the reporter was grossly irresponsible in relying on the police reports. The thrust of plaintiff's argument was that the reporter did not conduct an independent investigation into the incident and hence, did not interview witnesses who supposedly would have given a version favorable to plaintiff. However, the newspaper is under no legal obligation to interview every possible witness to an incident or to write the most balanced article possible. The newspaper's obligation is to base its story on a reliable source. It is clear that defendant's reporter did so and thus defendant was properly granted summary judgment (Chapadeau v. Utica Observer-Dispatch, supra; Carlucci v. Poughkeepsie Newspapers, supra, 88 A.D.2d at 609, 450 N.Y.S.2d 54; Robart v. Post-Standard, supra; Grobe v. Three Vil. Herald, supra ).

Because plaintiff and his attorney knew or should have known that the libel claim lacked merit, we conclude that defendant is entitled to sanctions. In reaching that conclusion, two issues must be addressed. The first is whether plaintiff's claim is frivolous. CPLR 8303-a ² states, in pertinent part § 8303-a. Costs upon frivolous claims and counterclaims in actions to recover damages for personal injury, injury to property or wrongful death

(a) If in an action to recover damages for personal injury, injury to property or wrongful death, an action or claim is commenced or continued by a plaintiff or a counterclaim, defense or cross claim is commenced or continued by a defendant that is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party...