Pollnow v. Poughkeepsie Newspapers, Inc.

• Decision Date: 04 February 1985
• Citation: 486 N.Y.S.2d 11,107 A.D.2d 10
• Parties: , 11 Media L. Rep. 1528 William POLLNOW, et al., Plaintiffs-Appellants, v. POUGHKEEPSIE NEWSPAPERS, INC., Respondent; Anna Bartelemucci, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 11

486 N.Y.S.2d 11

107 A.D.2d 10, 11 Media L. Rep. 1528

William POLLNOW, et al., Plaintiffs-Appellants, v. POUGHKEEPSIE NEWSPAPERS, INC., Respondent Anna Bartelemucci, Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 4, 1985.

Richard B. Wolf, Poughkeepsie, for plaintiffs-appellants.

Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie (Michael Kolb and Myra I. Packman, Poughkeepsie, of counsel), for defendant-appellant.

Van De Water & Van De Water, Poughkeepsie (Susanna E. Bedell, Poughkeepsie, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, BRACKEN and RUBIN, JJ.

TITONE, Justice.

In this defamation action, predicated upon the publication of three allegedly libelous letters to the editor of the Poughkeepsie Journal, the Supreme Court, Dutchess County, granted summary judgment to the defendant newspaper and denied that branch of a cross motion by the author of the letters to dismiss the complaint against her. We conclude that the "gross [ ] irresponsib[ility]" standard of liability (Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 341 N.E.2d 569) is applicable and the procedural posture of this case dictates that the first cause of action be dismissed and the order otherwise affirmed.

I

Sometime in April, 1981, plaintiff Otto Pollnow, then 16 years of age, physically attacked defendant Anna Bartelemucci's daughter, whom we shall refer to as AW, at AW's home. It appears that Pollnow was a friend of AW's son.

According to an April 29, 1981 article which appeared in the Millbrook Round Table, a weekly news journal, Pollnow later reported to the police station with his father and told the authorities that he was under the influence of "Angel Dust" and could not recall his actions. In addition, the article noted that AW's husband had discovered a knife stuck in a hassock in the living room of their home and that he had turned the knife over to the authorities. AW could not recall if a knife was used in the attack. Pollnow was arraigned on assault charges, pleaded not guilty, and was scheduled to appear in court on May 5, 1981.

On April 27, 1981, Pollnow was suspended from high school by the Millbrook Superintendent of Schools based on the criminal charge. Between April 27, 1981 and June 15, 1981, the Pollnows attempted, through school hearings and appeals to the New York State Commissioner of Education, to obtain their son's reinstatement to his high school classes. On June 15, 1981, the commissioner overruled the school board's refusal to reinstate Pollnow and held that his suspension was improperly imposed. The commissioner issued a second order to the same effect on October 30, 1981, directing the school board to comply with his earlier order.

While the assault charges were pending and the school reinstatement proceedings were in progress, defendant Bartelemucci wrote three letters to the Poughkeepsie Journal, a periodical owned by defendant Poughkeepsie Newspapers, Inc., for publication in its letters to the editor column. These three letters, which are reproduced in the appendix, form the basis of this defamation action. Among other things, the letters recite what Mrs. Bartelemucci perceives to be a "lax" police investigation and a faulty Grand Jury proceeding in connection with the attack on her daughter. No specific mention is made of Otto Pollnow.

Pollnow's attorney contacted the managing editor of the Poughkeepsie Journal and took "strong exception" to the publication of Bartelemucci's letters. He claimed that the letters contained "false and inaccurate statements relating to the aforementioned alleged criminal act and subsequent criminal proceedings", and that the newspaper must be held accountable for Bartelemucci's libelous statements.

In May, 1982, Pollnow was acquitted of the misdemeanor assault charge involving AW. The nonjury trial had been closed to the public because of Pollnow's status as a "youth" and the record was ordered sealed. Nonetheless, both Mrs. Bartelemucci and the defendant newspaper allege upon information and belief that the acquittal was based upon the trial court's determination that Pollnow lacked the requisite mens rea to commit the assault because he was under the influence of "Angel Dust" at the time.

Subsequently, Pollnow and his parents commenced this action. The amended complaint asserts four separate causes of action. The first three causes of action against Bartelemucci allege that she (1) failed to exercise proper care and acted negligently in writing and publishing the "false" letters thereby injuring Otto Pollnow; (2) acted "negligently, maliciously and with a reckless disregard for the truth of the matters she asserted in the letters, thereby deliberately injuring Otto Pollnow"; and (3) acted "with a willful and malicious intent to influence Millbrook school officials" by writing and publishing the letters to the editor thereby injuring Pollnow's reputation among his peers and in the community. The fourth cause of action against Poughkeepsie Newspapers, Inc., alleges "that by publishing the letters without proper attempts to verify their accuracy, the Poughkeepsie Journal acted negligently and witho the care required of newspapers concerning letters to the editor, thereby injuring Otto Pollnow".

By notice of motion dated October 4, 1982, Poughkeepsie Newspapers, Inc. sought summary judgment dismissing the amended complaint pursuant to subdivision (c) of CPLR 3211. In support of that motion, Poughkeepsie Newspapers, Inc. submitted the affidavits of its president and former managing editor, and affidavits from the editor and the former editor of its editorial page. The affidavits indicate that the letters authored by Bartelemucci were considered to be matters of public concern and thus worthy of publication. They also contain a concession that no inquiry was made upon receipt of the letters to determine their accuracy since there was no "reference point" in the letters which could have been verified because the writer did not name or identify the teenage assailant in any way and there was no identifiable connection between Bartelemucci and Pollnow. Finally, it was urged that summary disposition was appropriate because plaintiffs did not allege or submit any evidence to establish that the newspaper was "grossly irresponsible" in publishing the letters.

By notice of cross motion, Bartelemucci sought, among other things, an order dismissing the amended complaint pursuant to CPLR 3211 (subd. [a], par. 7) for failure to state a cause of action. Bartelemucci claimed that since plaintiffs did not allege that she acted in a "grossly irresponsible" manner in writing the subject letters, dismissal of the amended complaint was appropriate.

In opposition to these motions, plaintiffs did not tender any evidentiary affidavits. Instead, they relied upon the amended complaint, which was verified by Otto Pollnow's mother, and a memorandum of law submitted by their attorney.

Special Term granted the newspaper's motion for summary judgment and dismissal but denied that branch of Bartelemucci's cross motion which sought dismissal. We now modify, by dismissing the first cause of action, and otherwise affirm, employing a somewhat different rationale than the one espoused at nisi prius.

II

Historically, the tort of defamation was characterized by strict liability (see Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349; Veeder, The History and Theory of the Law of Defamation, 3 Col.L.Rev. 546). English common law declared intention to be irrelevant; the question was stated to be who was hit, not who was aimed at (Jones v. Hulton & Co., 2 KB 444 [1909]; see Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 126 N.E. 260). ¹ Recognizing that strict liability "too often discouraged the publication of the truth about matters of general public concern" (Keeton, Defamation and Freedom of the Press, 54 Tex.L.Rev. 1221, 1226) and that strict liability collided with the First Amendment's guarantee of "a fertile and continuing source of supply for the marketplace of ideas from which an intelligent and informed populace may choose its own course" (Schermerhorn v. Rosenberg, 73 A.D.2d 276, 283, 426 N.Y.S.2d 274), the United States Supreme Court, beginning with the landmark New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 decision, placed limitations on the right of the states to award damages for defamation. It is now basic that public officials and public figures must establish malice in the constitutional sense, i.e., that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard of the truth, before they may recover damages (e.g., Prosser & Keeton, Torts [5th ed.], § 113, p. 806; Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456). ²

For individuals who are neither public officials nor public figures, the applicable standard was somewhat elusive. A delicate balance had to be struck "between the individual's right to protect his good name and the guarantees of the First Amendment which safeguard the people's right to an active, thriving and untrammeled press" (Gurda v. Orange County Pub. Div. of Ottaway Newspapers, 81 A.D.2d 120, 130, 439 N.Y.S.2d 417 [opn. of MOLLEN, P.J., and TITONE, J., concurring and dissenting in part], revd. 56 N.Y.2d 705, 451 N.Y.S.2d 724, 436 N.E.2d 1326 on opn. of MOLLEN, P.J., and TITONE, J.). Abandoning the plurality approach of Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, the Supreme Court struck that balance in Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, holding "that so long as they do not impose liability without fault, the States may define for themselves the appropriate...