Prozeralik v. Capital Cities Communications, Inc.

• Decision Date: 22 December 1995
• Citation: 635 N.Y.S.2d 913,222 A.D.2d 1020
• Parties: John PROZERALIK, Respondent, v. CAPITAL CITIES COMMUNICATIONS, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 913

635 N.Y.S.2d 913

222 A.D.2d 1020

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

Supreme Court, Appellate Division,

Fourth Department.

Dec. 22, 1995.

Cahill, Gordon & Reindel, by Floyd Abrams, New York City, for appellant.

Jaeckle, Fleischmann and Mugel by Floyd Abrams, Buffalo, for appellant.

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

Gross, Shuman, Brizdle and Gilfillan, P.C. by Richard Sullivan, Buffalo, for respondent.

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

MEMORANDUM:

Plaintiff met his burden of proving, with evidence of convincing clarity, that defendant made false statements concerning him "with 'actual malice'--that is, knowing they were false or subjectively entertaining serious doubt as to their truth" (Mahoney v. Adirondack Publ. Co., 71 N.Y.2d 31, 35-36, 523 N.Y.S.2d 480, 517 N.E.2d 1365; see, New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686; Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 474, 605 N.Y.S.2d 218, 626 N.E.2d 34). Plaintiff's counsel improperly stated in the presence of the jury that plaintiff's former attorney, a defense witness, was the subject of a Federal Grand Jury investigation (see, Dance v. Town of Southampton, 95 A.D.2d 442, 453, 467 N.Y.S.2d 203). However, neither that comment nor the other alleged improprieties involving that witness deprived defendant of a fair trial (see, Rohring v. City of Niagara Falls, 192 A.D.2d 228, 230-231, 601 N.Y.S.2d 740, aff'd 84 N.Y.2d 60, 614 N.Y.S.2d 714, 638 N.E.2d 62). The court's instruction to the jury on actual malice was proper (see, Prozeralik v. Capital Cities Communications, supra; PJI 3:28 [1995 Supp]. Any error in excluding the testimony of defendant's reporter with respect to a statement made to her by an FBI Agent was harmless. That evidence was presented to the jury on several other occasions. The court properly excluded as irrelevant the testimony of two other reporters regarding their past dealings with that Agent. "The admission of expert evidence is a matter which rests within the discretion of the Trial Judge" (Dufel v. Green, 84 N.Y.2d 795, 797, 622 N.Y.S.2d 900, 647 N.E.2d 105). The Trial Judge did not abuse her discretion in permitting expert testimony on journalistic standards and practices. We reject defendant's contention that the jury's award of compensatory damages is excessive. That award does not "deviate[ ] materially from what would be reasonable compensation" (CPLR 5501[c].

The record, however, does not support the jury's award of punitive damages. The evidence is insufficient to establish that the false statements concerning plaintiff were made "out of hatred, ill will, spite, criminal mental state or that traditionally required variety of common-law malice" (Prozeralik v. Capital Cities Communications, supra, 82 N.Y.2d at 480, 605 N.Y.S.2d 218, 626 N.E.2d 34). We modify the judgment, therefore, by vacating the award of punitive damages.

Judgment modified on the law and as modified affirmed without costs.

All concur except LAWTON and DOERR, JJ., who dissent in part in the following Memorandum:

LAWTON and DOERR, JJ. (dissenting).

We respectfully dissent in part. Upon constraint, we agree with the majority that plaintiff met his burden of establishing that defendant acted with actual malice and that the jury's...