Rinaldi v. Holt, Rinehart & Winston, Inc.

• Decision Date: 13 July 1976
• Citation: 386 N.Y.S.2d 818,53 A.D.2d 839
• Parties: Dominic S. RINALDI, Plaintiff-Respondent-Appellant, v. HOLT, RINEHART & WINSTON, INC., et al., Defendants-Appellants, The Village Voice, Inc., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 818

386 N.Y.S.2d 818

53 A.D.2d 839

Dominic S. RINALDI, Plaintiff-Respondent-Appellant, v. HOLT, RINEHART & WINSTON, INC., et al., Defendants-Appellants The Village Voice, Inc., Defendant-Respondent.

Supreme Court of New York, Appellate Division First Department.

July 13, 1976.

I. N. Wilpon, Brooklyn, for Dominic S. Rinaldi.

C. G. Eldridge, Jr., V. A. Kovner, New York City, for Holt, Rinehart & Winston, Inc.

V. A. Kovner, New York City, for the Village Voice, Inc.

Order, Supreme Court, New York County (Gellinoff, J.), entered on March 10, 1976, affirmed for the reasons stated by Gellinoff, J., at Special Term, without costs and without disbursements.

LUPIANO, J., concurs in a memorandum.

MURPHY, J.P., and SILVERMAN, J., dissent in part in separate memoranda, as follows:

LUPIANO, J. (concurring):

I would affirm the order appealed from for the reasons set forth in Special Term's (Gellinoff, J.) cogent opinion. Our Court of Appeals has declared: 'To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (DiMenna & Sons v. City of New York, 301 N.Y. 118 (92 N.E.2d 918)). This drastic remedy should not be granted where there is any doubt as to the existence of such issues (Braun v. Carey, 280 App.Div. 1019 (116 N.Y.S.2d 857)), or where the issue is 'arguable' (Barrett v. Jacobs, 255 N.Y. 520, 522 (175 N.E. 275)); 'issue-finding, rather than issue-determination, is the key to the procedure' (Esteve v. Abad, 271 App.Div. 725, 727 (68 N.Y.S.2d 322))' (Sillman v. Twentieth Century Fox, 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957)). Further, it is well to note that '(w) ithout speculating on the apparent conflicting rationale of the post New York Times cases (New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686), this court recognizes that the exercise of the right of free speech and free press demands and even mandates the observance of the coequal duty not to abuse such right, but to utilize it with right, reason and dignity. Vain lip service to 'duties' in a vacuous reality wherein 'rights' exist, sovereign and independent of any balancing moral or social factor, creates a semantical mockery of the very foundation of our laws and legal system.' (Bavarian Motor Works Ltd. v. Manchester, 61 Misc.2d 309, 311, 305 N.Y.S.2d 593). MURPHY, J. (dissenting in part). Defendants Holt, Rinehart & Winston, Inc. (hereafter 'Holt') and Newfield appeal, separately, from that portion of the order below which denied their respective motions for summary judgment dismissing the complaint as against them in the instant libel action. Plaintiff cross-appeals from so much of said order as granted the motion of defendant Village Voice, Inc. for similar relief. I would grant the relief requested by all three defendants. In 1972 Newfield authored and the Village Voice published a series of articles that may generally be described as unflattering to plaintiff, a Justice of the State Supreme Court. More particularly, the article adversely depicted the manner in which plaintiff discharged his judicial duties. Plaintiff, claiming an absence of proof of malice, took no immediate action. Subsequently, an advertising agency composed an advertisement for the Village Voice containing a summary of portions of the article, which was published in the New York Times. Plaintiff then instituted suit to recover for an invasion of his right of privacy and for defamation. This Court affirmed the denial of summary judgment to the Village Voice and the agency. (Rinaldi v. Village Voice, 47 A.D.2d 180, 365 N.Y.S.2d 199, Lv. to app. den. May 13, 1975, Cert. den., 423 U.S. 883, 96 S.Ct. 153, 46 L.Ed.2d 112.) In the Fall of 1972 Holt, with Village Voice's acquiescence, entered into a contract with Newfield to publish a book entitled 'Cruel and Unusual Justice' ('the book') consisting, inter alia, of reprints of the Newfield articles. Approximately one year later Justice Rinaldi was indicted on charges of perjury and obstruction of justice. He was subsequently acquitted and reelected to the Supreme Court. The book was published in March, 1974, while the indictment was still pending. The instant action, alleging a single claim of libel against all three defendants and seeking compensatory and punitive damages in the sum of $5,000,000, was commenced several months later. The essence of the complaint is not that any portion of the book was palpably false, but, rather, that certain allegedly material facts were omitted from otherwise accurate reports of plaintiff's conduct and disposition as a judge generally; and his handling of three criminal cases in particular. For example, Newfield reported that three defendants in one case were set free with only $250 fines each, whereas two of them received $500 fines; the maximum sentence which could have been imposed on another defendant was only 15 years and not 25 years, as reported; and, in the third case, the defendant was paroled on an attempted bribery charge and not on a narcotics charge as reviewed (although it appears that the bribery attempt arose out of the narcotics arrest). I find these inaccuracies, in the context of this case, to be minor and inconsequential. While it is true that Newfield editorialized and severely criticized plaintiff for, among other things, 'let(ting) a heroin dealer go free', 'being suspiciously lenient in felony narcotics cases,' 'putting people on the street who sell death for a profit' and being 'incompetent and probably corrupt,' the question before us is not whether these opinions are justified, but whether they are constitutionally protected. In my view, they are. The Supreme Court's landmark decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, made dramatic changes in the law of defamation involving public officials by placing on a plaintiff in that category the heavy burden of proving, with 'convincing clarity,' that the factual material in suit was substantially false and that it was published with knowledge of its falsity or with reckless disregard as to its truth. On the instant record, which includes all pretrial discovery and presumably the evidence which will be adduced at the trial, plaintiff has failed to meet either aspect of that burden. As above-noted, the submissions below sufficiently reveal that plaintiff failed to carry his constitutional burden of proof of material falsity of the published facts with 'convincing clarity.' Accordingly, and for that reason alone, the complaint must be dismissed. Special Term, however, found triable issues of fact, 'irrespective of the literal truth of the facts published,' because, inter alia, 'crucial facts have been omitted which may devitalize the published facts and render them...