Osmers v. Parade Publications, Inc.

• Decision Date: 13 October 1964
• Citation: 234 F. Supp. 924
• Parties: Frank C. OSMERS, Jr., Plaintiff, v. PARADE PUBLICATIONS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

234 F. Supp. 924

Frank C. OSMERS, Jr., Plaintiff, v. PARADE PUBLICATIONS, INC., Defendant.

United States District Court S. D. New York.

October 13, 1964.

McCarthy & McGrath, New York City, for plaintiff, Herman J. McCarthy, New York City, of counsel.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant, Martin Kleinbard and William S. Wells, New York City, of counsel.

TYLER, District Judge.

This action for libel is predicated upon an article appearing in the edition of "Parade", a weekly magazine, dated Sunday, May 5, 1963. Defendant publisher of "Parade" moves to dismiss upon the ground that the action is barred by the applicable statute of limitations.

Exhibits submitted by plaintiff clearly indicate his efforts prior to the commencement of this action to obtain a letter of retraction and apology from the publisher. At least as early as January 2, 1964, counsel for the parties discussed the proposed contents of such a letter. After several months of unsuccessful negotiations, plaintiff's counsel, aware of the approaching deadline for filing suit within the one year period of limitations in New York (CPLR § 215(3)), sent a final letter, dated April 25, 1964, demanding retraction of the charges. One of plaintiff's lawyers states that in response to this letter, he received a telephone call three or four days later from defendant's attorneys advising him that their client was ready to sign an appropriate letter of apology. Late in the afternoon of May 1, 1964, however, he received another telephone call from the same lawyer to the effect that defendant had changed its mind and was unwilling to furnish or deliver any such letter. Plaintiff thereupon commenced this action on May 4, 1964.

Although "Parade" is a supplement designed to be inserted and sold on news-stands as part of the Sunday edition of local newspapers, defendant asserts that approximately 1,800 copies of the magazine were sold to the public from some 85 newsstands in or near Syracuse, New York, prior to May 5, beginning Tuesday, April 30.¹ Accordingly, defendant argues that the statute of limitations was tripped by sales on April 30, 1963 and that thus this action is time-barred. Parenthetically, defendant denies that its belated and rather abrupt withdrawal of consideration and negotiation of a retraction letter was designed to or actually did mislead plaintiff in the necessary and timely assertion of his rights.

In Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 126, 81 N.E.2d 45 (1948), the Court of Appeals of New York extended the "single publication rule" of this state to books, declaring that a defamation cause of action "arises when the finished product is released by the publisher for sale in accord with trade practice". Just how to apply this deceptively simple rule to the facts of a particular case has plagued the courts ever since Gregoire. The following principles, however, have been established: the cause of action accrues on the date of the first publication of the libel, National Cancer Hospital of America v. Confidential, Inc., 151 N.Y.S.2d 443 (Sup. Ct.1956); "the date of `publication' of an alleged libel is not determined by or even related to the printed date on the printed matter, and may well have been days or perhaps weeks before that date," Stella v. James J. Farley Ass'n, Inc., 204 Misc. 998, 122 N.Y.S.2d 322, 324-325 (1953); the date on which the libelous publication is delivered to a common carrier for shipment to distributors and newsstands is not the publication date, Sorge v. Parade Publications, Inc., 20 A.D.2d 338, 247 N.Y.S.2d 317 (1964).²

Thus, the act of legal publication occurs some time between the date of delivery to a common carrier and the date printed on the cover of the magazine. In Zuck v. Interstate Publishing Corp., 317 F.2d 727, 731 (2d Cir. 1963), the Court of Appeals for the Second Circuit pointed the way that must now be taken in establishing the precise date:

"As the New York Court of Appeals has not yet resolved the conflicting interpretations of its Gregoire test of accrual, we are required to apply to the facts before us the interpretation which we believe that court would make in light of the state policies underlying the single publication rule."

It should be borne in mind, of course, that the statute of limitations is designed to protect the alleged wrongdoer from stale claims and that the single publication rule is designed to safeguard him against a multiplicity of actions. On the other hand, any rule fixing the accrual date must reflect balanced consideration of the difficulties encountered by plaintiffs with genuine grievances. Judge Waterman in Zuck, commenting upon the unusually short period of limitations for libel, said at 731 of 317 F.2d:

"To fix as the date of legal publication even the time that the offending matter is placed on

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