Rinaldi v. Viking Penguin, Inc.

• Decision Date: 07 April 1981
• Citation: 438 N.Y.S.2d 496,52 N.Y.2d 422,420 N.E.2d 377
• Parties: , 420 N.E.2d 377, 7 Media L. Rep. 1202 Dominic S. RINALDI, Appellant-Respondent, v. VIKING PENGUIN, INC., Appellant, et al., Defendant, Jack Newfield et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 496

438 N.Y.S.2d 496

52 N.Y.2d 422, 420 N.E.2d 377, 7

Media L. Rep. 1202

Dominic S. RINALDI, Appellant-Respondent, v. VIKING PENGUIN, INC., Appellant, et al., Defendant, Jack Newfield et al., Respondents.

Court of Appeals of New York.

April 7, 1981.

Irwin N. Wilpon, Brooklyn, for appellant-respondent

Martin Garbus, Arthur J. Ginsburg and Lois F. Wasoff, New York City, for appellant.

Victor A. Kovner, Harriette K. Dorsen and Josephine Lea Iselin, New York City, for respondents.

OPINION OF THE COURT

FUCHSBERG, Judge.

This case for libel, brought by Dominic S. Rinaldi, now a retired New York State Supreme Court Justice, against Viking Penguin, Inc., ¹ the publisher of a book entitled "The Abuse of Power", and its coauthors, Jack Newfield and Paul Du Brul, in the main requires us to consider (1) whether under the relevant circumstances, there can be said to have been a republication of the book sufficient to start the applicable one-year Statute of Limitations running anew (CPLR 215, subd. 3) and (2) the standards by which summary judgment may be applied in a public figure libel litigation in determining the existence of actual malice.

The issues come to us in the context of two appeals, now consolidated. Each arises from a single order of the Appellate Division, which, on the law, modified Special Term's order denying the publisher's and the authors' separate motions for summary judgment and granting plaintiff's cross motion to dismiss defendant's affirmative defense of the Statute of Limitations, 101 Misc.2d 928, 422 N.Y.S.2d 552. The modification granted summary judgment to the authors, but otherwise affirmed (73 A.D.2d 43, 425 N.Y.S.2d 101). The Appellate Division thereafter granted the publisher leave to appeal on a certified question, which, in its usual broad form, asks whether its ruling against this defendant was proper (CPLR 5602, subd. For his part, aggrieved by so much of the ruling as favors the authors, plaintiff appeals as a matter of right (CPLR 5601). On the analysis which follows, we believe the result reached at the Appellate Division was correct in all respects.

The facts on which the determinations rest may be said to have begun on May 13, 1977, when Penguin released a hard-cover edition of the book to the general public. Among this work's contents, in a section introduced by a topical sentence which speaks of "organized crime's domination of New York City's politics and judges", ² appeared the following language: "Individual mobsters have had access to individual politicians and judges * * * And some judges appear to display generosity toward organized crime defendants * * * Supreme Court Justice Dominic Rinaldi has twice personally gone to police stations to release alleged Mafioso Santo Patti, who had twenty prior gambling arrests, rather than wait for Patti to be arraigned before another judge the next morning. Police records show that Justice Rinaldi did this on April 18, 1969, and again on June 5, 1970. But no crime has ever been proven against Corso or Rinaldi. The secret connections between Mafia dons and politicians and judges are raw meat for gossip and television drama. But the element of legal proof seems lacking, although we would not be surprised if it were discovered tomorrow by an interprising prosecutor" (emphasis added).

Within a week, Justice Rinaldi had written to the publisher protesting that the emphasized language was false, and demanding both its retraction and its elimination from any unissued copies or future printings. In this and other correspondence in which he and the publisher engaged shortly thereafter, he specifically stated, among other things, that he had never been to a police station to sign a release on a bail bond; that the police records did not bear out the book's assertion that he had; that the bonds he did sign, standard ones in misdemeanor cases, were in the form approved by the State Superintendent of Insurance; that he and other Judges in the same position were required to sign them in such cases in normal course; and that he never met or heard of Santo Patti and was not even familiar with his name when he signed the bonds.

The responses from Viking and its counsel in sum acknowledged that there had been "factual error", but offered to do no more than delete the reference to going to police stations, amends which Justice Rinaldi was to reject as inadequate. In justification for its position, the publisher also indicated that it had had a right to rely on the authors and that Mr. Newfield, who had been the one to write the passages in question, in turn had relied on an article which had appeared in the New York Times some two years earlier.

But Justice Rinaldi, in addition to insisting that the Times story itself had been neither fair nor faithfully followed in "The Abuse of Power", maintained that, in context, "book publishes the statements not contained in the Times article, that I went to the police station to sign these bonds, and that this was done because individual mobsters have had access to me and because of the secret connections between the Mafia dons and judges and that by reason thereof, I committed some yet unproven crime". On that note, his last words to Viking's lawyers, on September 8, 1977, read, "It is now clear to your client and to you, that these statements as to me, based on my signing of these bonds of Santo Patti, are false, and that if your client persists in its position, it does so with knowledge of such falsity". Despite, or perhaps because of, the plaintiff's firm views, Viking's senior editor admits that, almost contemporaneously, she wrote a note "to be placed in the corrections file which would be organized in preparation for any subsequent printing of the Book." The note itself has never been produced.

The scene then shifts to the spring of 1978, when, having found the book far less successful than anticipated, the publisher, after having printed 20,000 copies for hard-cover use, found itself with about 10,000 unsold ones. About 5,400 of these had never even been bound. It was at this juncture that the publisher decided to market a paperback edition, in the course of whose production it would consume or convert the unbound and hardbound materials it had on hand.

This it had accomplished by May, 1978. The paperbacks so produced received, inter alia, new covers, a new publisher's name ("Penguin Books" in place of "Vanguard Press"), a revised title page updating the publication from 1977 to 1978 and a copyright page memorializing new identifying numbers, including ones assigned by the Library of Congress. In addition, newly imprinted data indicated that the book was to be published simultaneously in foreign countries by diverse Penguin Books entities, mostly corporate in form. In the process, the hard covers on the some four-thousand-odd copies that had been left over from the initial publication were ripped off and two new pages substituted by hand. The changes necessary to recyle the previously unbound pages directly into paperbacks were even more extensive; a so-called "signature" consisting of the first 32 pages of each unbound copy, was reprinted in its entirety. Yet, the matter which had elicited plaintiff's indignation was left unchanged, nothing being deleted or rewritten to conform to the editor's offer and "note", much less to plaintiff's prescription for repairing the harm. In the face of this event, plaintiff commenced this action, over a year from the time the hard-cover edition came out, but only two months from the time when the soft-cover copies first appeared.

It was essentially on this record that Special Term, passing on the motions, found that the books had been "substantially modified", that the marketing of the paperbacks was an "independent act" rather than part of a "continuous publication" and that, as a consequence, the time within which the suit could be brought was to be measured from the issuance of the paperbacks and not the hard-covers. Stressing that the plaintiff had put the defendants on notice that the "original publication was inaccurate and defamatory", nisi prius also concluded that the plaintiff had made a sufficient demonstration of the existence of actual malice to resist summary judgment, all the more so when there had been no opportunity for discovery. ³

Only on the disposition as to the authors did the Appellate Division overrule Special Term. On that score, while Special Term would go no further than to suggest that subsequent disclosure might reveal that the authors had too little "input in the publication of the paperback edition to subject them to liability", the Appellate Division arrived at a fixed conclusion that, since the authors had no say in the decision to publish the paperbacks, which alone were the subject of plaintiff's suit, the republication of the offending statement was not an act for which Messrs. Newfield and Du Brul could be faulted. However, the Appellate Division agreed that, in putting out the paperbacks, the publisher had "held this out as a new edition or publication, a reissue, and it does have that effect for purposes of the statute of limitations". Moreover, as to the requisite showing of actual malice, quoting from Trails West v. Wolff, 32 N.Y.2d 207, 219, 344 N.Y.S.2d 863, 298 N.E.2d 52, it too felt that there was sufficient showing that "the defendant in fact entertained serious doubts as to the truth" of the statement to require "further exploration of the facts".

Against this factual and decisional background, treating first with the Statute of Limitations issue, we at once focus, as have all the parties, on Gregoire v. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45, in which this court for the first time applied what has come to be known as the "single publication rule" to a book libel suit. Building on Wolfson v. Syracuse Newspapers, 254 App.Div. 211, 4 N.Y.S.2d 640, affd. without opn. 279 N.Y. 716, 18 N.E.2d 676,...