Prozeralik v. Capital Cities Communications, Inc.

• Decision Date: 05 February 1993
• Citation: 188 A.D.2d 178,593 N.Y.S.2d 662
• Parties: , 21 Media L. Rep. 1073 John PROZERALIK, Respondent, v. CAPITAL CITIES COMMUNICATIONS, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 662

593 N.Y.S.2d 662

188 A.D.2d 178, 21 Media L. Rep. 1073

John PROZERALIK, Respondent, v. CAPITAL CITIES COMMUNICATIONS, INC., Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 5, 1993.

Jaeckle, Fleischmann & Mugel by Floyd Abrams, Buffalo, Cahill, Gordon & Reindel, New York City, for appellant.

Frank R. Bayger by Richard Sullivan, and Sullivan, Benatovich, Oliverio and Trimboli, Buffalo, for respondent.

Rogers & Wells (Richard N. Winfield, of counsel), New York City, for amici curiae, Advance Publications, Inc., The Associated Press, et al.

Before CALLAHAN, J.P., and GREEN, LAWTON, BOEHM and DOERR, JJ.

GREEN, Justice:

On May 7, 1982, a television station and a radio station owned by defendant broadcast reports falsely identifying plaintiff as the victim of an abduction and beating that occurred the previous evening. The reports also incorrectly stated that the F.B.I. was investigating the possibility that plaintiff owed money to organized crime. Plaintiff, a prominent Niagara Falls businessman, commenced this defamation action shortly after the broadcasts. Following a jury trial, plaintiff was awarded $18,474,525 in compensatory and punitive damages. The court on motion reduced the award for financial loss by remittitur, leaving the amount of $15,487,525.

I

The primary issue on appeal is whether plaintiff, a public figure, proved by clear and convincing evidence that the false statements were published with "actual malice" (Mahoney v. Adirondack Publ. Co., 71 N.Y.2d 31, 39, 523 N.Y.S.2d 480, 517 N.E.2d 1365; Bee Pub. v. Cheektowaga Times, 107 A.D.2d 382, 383, 485 N.Y.S.2d 885). In determining whether plaintiff met his burden, we must "independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice' " (Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686, 109 S.Ct. 2678, 2695, 105 L.Ed.2d 562, quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502). Our independent examination of the record necessarily includes an examination of " 'the statements in issue and the circumstances under which they were made to see * * * whether they are of a character which the principles of the First Amendment * * * protect' " (Harte-Hanks Communications v. Connaughton, supra, 491 U.S. at 688, 109 S.Ct. at 2696, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686). After reviewing the record, we conclude that plaintiff met his burden of proving that defendant acted with "actual malice."

The false identification of plaintiff as the victim of a mob-related abduction and beating was spawned in the newsroom of WKBW-TV Channel 7 (Channel 7) on the morning of May 7, 1982. The previous evening the station had reported that a man had been taken to the Howard Johnson's Motel in Cheektowaga and beaten, possibly because the victim owed money to organized crime. Although the Cheektowaga police and the F.B.I. refused to release the victim's name, the station's competitor, Channel 4, correctly identified the victim as David Pasquantino on its 11 o'clock newscast on May 6, 1982. When Channel 7 employees arrived at the newsroom on the morning of May 7, the conversation focused on the identity of the victim of the Cheektowaga motel beating. Someone had heard a name on the radio, and it "came up in conversation" that the victim was a prominent restaurateur. Channel 7 assignment manager Nancy Sanders wondered aloud if the victim was plaintiff, John Prozeralik, because plaintiff was a well-known restaurateur and his was "the first name that came to mind."

Inspired by Sanders' conjecture, Channel 7 news director Bruce Corris directed reporter Cindy DiBiasi "to run that name past the F.B.I." DiBiasi telephoned Special Agent John Thurston and asked him to name the victim of the Cheektowaga motel beating. Thurston and DiBiasi gave conflicting accounts of the conversation. Thurston maintained that he did not know the name of the victim when DiBiasi called and that he flatly refused to confirm or deny any name. According to DiBiasi, when she gave Thurston the name John Prozeralik, he replied, "Okay. You can go with that unless I call you back."

DiBiasi completed her story and read the following script on Channel 7's noon news:

"The F.B.I. is investigating a beating and abduction in Cheektowaga last night.

"Today, investigators are questioning John Prozeralik, the owner of John's Flaming Hearth Restaurant in Niagara Falls, New York.

"Prozeralik was either tricked or forced to the Howard Johnson's in Cheektowaga according to police where he was beaten with a baseball bat or pipe and tied up.

"Today the F.B.I. is investigating the possibility that Prozeralik owed money to organized crime.

"Investigators are looking for two suspects * * * sources say one of the men is from Florida."

Based upon the information obtained in the television broadcast, WKBW Radio aired reports at 12:45, 1:45 and 2:45. The three radio broadcasts essentially repeated Channel 7's account.

After plaintiff learned of the broadcasts, he instructed his attorneys to call Channel 7 and WKBW Radio to inform the stations of their mistake and to demand retractions. Plaintiff also called Channel 7 news director Steven Ridge requesting a retraction. Ridge refused to retract the story, but he instructed DiBiasi to confirm plaintiff's name with Special Agent Thurston and directed investigative reporter John Pauley to seek confirmation from other sources.

By the late afternoon of May 7, Channel 7 was convinced that it had falsely identified plaintiff as the victim of the abduction and beating. Thurston informed Ridge that the F.B.I. was not investigating plaintiff and that he had never confirmed plaintiff's name in any way during his earlier telephone conversation with DiBiasi. Ridge also learned, through DiBiasi and Pauley, that the victim was in fact David Pasquantino.

Ridge drafted the following "retraction", which was broadcast on Channel 7's six o'clock news and essentially repeated on the 11 o'clock news:

"Tonight, we have developments on two fronts in the abduction that ended yesterday in a Cheektowaga motel.

"First, the victim is not, and I repeat, is not, John Prozeralik, the operator of John's Flaming Hearth Restaurants.

"The F.B.I. earlier today said and confirmed the victim was Prozeralik, but our independent investigation is revealing he was not involved.

"The actual victim is David Pasquantino, a Wheatfield restaurant owner who lawmen say is associated with bookmaking.

"Sources are telling us Pasquantino was abducted from the restaurant after he fell behind in payments of a 30 thousand dollar loan from a Florida underworld figure.

"An arrest warrant is out for one of Pasquantino's abductors tonight."

The evidence of the circumstances surrounding defendant's broadcasts establishes, with convincing clarity, that defendant made the false statements concerning plaintiff "with 'actual malice'--that is, knowing they were false or subjectively entertaining serious doubt as to their truth (see, Bose Corp. v. Consumers Union of United States, Inc., 466 US 485, 511, n. 30 ; St. Amant v. Thompson, 390 US 727, 731 [88 S.Ct. 1323, 1325, 20 L.Ed.2d 262]; New York Times Co. v. Sullivan, 376 US 254, 280 [84 S.Ct. 710, 726, 11 L.Ed.2d 686])" (Mahoney v. Adirondack Publ. Co., 71 N.Y.2d 31, 35-36, 523 N.Y.S.2d 480, 517 N.E.2d 1365, supra ). Contrary to defendant's contention, the reports naming plaintiff as the victim of the Cheektowaga motel beating were not the product of a "misunderstanding" (cf., Mahoney v. Adirondack Publ. Co., supra, at 40, 523 N.Y.S.2d 480, 517 N.E.2d 1365). Rather, the misidentification of plaintiff was the result of groundless speculation and conjecture in the Channel 7 newsroom. The use of plaintiff's name was not based upon an innocent mistake but upon a clear fabrication. John Prozeralik's name was falsely associated with organized crime and loansharking because it "was the first name that came to mind" when Channel 7 learned that the victim was a prominent restaurateur.

The record supports the jury's decision, implicit in its verdict, to credit Thurston's testimony that he did not confirm plaintiff's name in any way and that he never told DiBiasi that she could "go with" plaintiff's name unless he called her back. Because the false identification of plaintiff was nothing less than an unsubstantiated fabrication that the F.B.I. refused to confirm, the noon news broadcast was clearly made with a " 'high degree of awareness of * * * probable falsity' " (Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 2685, supra, quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125).

Defendant cannot avoid liability for WKBW Radio's republication of Channel 7's defamatory statement, because the original publisher and the republisher are part of the same enterprise, owned by defendant (see, Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 553, 435 N.Y.S.2d 556, 416 N.E.2d 557; see also, 44 NYJur2d, Defamation and Privacy, § 51). "Any publication, whenever made, by the corporation must be judged in the light of all relevant corporate activity" (Karaduman v. Newsday, Inc., supra, at 553, 435 N.Y.S.2d 556, 416 N.E.2d 557 [emphasis added]. Because the original television broadcast was made with actual malice, defendant is responsible for its republication on WKBW radio.

The record demonstrates that defendant also acted with actual malice in broadcasting the purported retractions on Channel 7's six and 11 o'clock news. We reject defendant's contention that the trial court improperly instructed the jury that the final two television broadcasts contained false statements as a matter of law. Based upon the undisputed...