Rubinstein v. New York Post Corp.

• Decision Date: 04 January 1985
• Citation: 488 N.Y.S.2d 331,128 Misc.2d 1
• Parties: , 11 Media L. Rep. 1329 David RUBINSTEIN, Abraham Rubinstein, and Barbara Rubinstein, Plaintiffs, v. NEW YORK POST CORP., and New York News, Inc., Defendants.
• Court: New York Supreme Court

Page 331

488 N.Y.S.2d 331

128 Misc.2d 1, 11 Media L. Rep. 1329

David RUBINSTEIN, Abraham Rubinstein, and Barbara Rubinstein, Plaintiffs, v.NEW YORK POST CORP., and New York News, Inc., Defendants.

Supreme Court, Special Term New York County, Part I.

Jan. 4, 1985.

Robert D. Gould, P.C., by David Spector, New York City, for plaintiffs.

Squadron, Ellenoff, Plesent & Lehrer by Ray Beckerman, New York City, for defendants.

EDWARD J. GREENFIELD, Justice:

When Mark Twain's obituary was erroneously published, he is reported to have commented with a chuckle: "The reports of my death are greatly exaggerated."

When the New York Post and the New York Daily News published an obituary notice for David Rubinstein, aged 37, who was alive and well and living in Brooklyn, Mr. Rubinstein was not amused.Indeed, he claims that he was mortified, and not only did he demand a retraction, but claiming to have "sustained severe and painful injuries, both internal and external, and suffered severe mental and nervous shock and mental anguish as a result thereof" and that he has become "incapacitated from her [sic] usual vocation and avocation", he brought suit against the Post and the News, seeking damages of $750,000 against each of them.In addition, his father and his wife are each suing for $750,000 for their injuries and mental anguish.The wife, too, alleges that she was "incapacitated from his [sic] usual vocation and avocation" and was rendered "sick, sore, lame and disabled", incurring hospital and other expenses.David and Barbara Rubinstein sue for another $100,000 each for loss of the consortium and affection and services of the other.

The defendant New York Post moved to dismiss the complaint for failure to state a cause of action.On the return date, there being no response from plaintiffs, the motion was granted by default.Plaintiffs now move to vacate the default and to stay execution on the judgment which has been entered.

CPLR 5015(a)(1) permits the court to relieve a party from a judgment or order on grounds of excusable default, but that power is discretionary.Inadvertence and law office failure may now be considered as proper grounds for exercising discretion in opening up a default.CPLR 2005 as added, L.1983, Ch. 318, liberalized the rule of Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275, to that extent.The explanation of plaintiffs that answering papers and a memorandum of law had been prepared but were not picked up by the lawyers' service representative is a sufficient showing of excusable default.

However, before a court exercises its discretion to reopen a matter, it must also be satisfied that vacatur is not a futile gesture, and that a meritorious cause of action or defense can be demonstrated.Barasch v. Micucci, supra, p. 599, 427 N.Y.S.2d 732, 404 N.E.2d 1275;American Television Syndication Co., Inc. v. La Marca, 97 A.D.2d 372, 467 N.Y.S.2d 578;Clarke v. Clarke, 75 A.D.2d 836, 427 N.Y.S.2d 871.That, the plaintiffs have failed to do.

Plaintiffs are not claiming that the publication of the obituary libelled David Rubinstein and his family.Certainly, there are worse things that can be said about a person than that he is deceased.Indeed, respect and admiration for an individual usually increases upon his demise, since the ancient imprecation "de mortuis nil nisi bonum" is generally applied.Abraham Lincoln spoke reverently of "these honored dead".Death is an honorable estate, so that no one is demeaned or belittled by the report of his or her death.Cohen v. New York Times Co., 153 App.Div. 242, 138 N.Y.S. 206;Curtin v. Western Union, 13 App.Div. 253, 255, 42 N.Y.S. 1109;Cardiff v. Brooklyn Eagle Inc., 190 Misc. 730, 75 N.Y.S.2d 222.

Possibly seeking to avoid the rigorous limitations which are to be applied in libel suits, plaintiffs alleged that the newspaper "negligently and carelessly published false information, and failed to publish a timely retraction", thereby inflicting injuries on each of them.If a report of a death by a newspaper were to be considered defamatory, there could still be no recovery for mere hurt feelings or embarrassment or chagrin, for special damages would have to be alleged.Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789;Salomone v. MacMillan Publishing Co., Inc., 77 A.D.2d 501, 429 N.Y.S.2d 441.

If the newspaper report deals with a public figure or a matter of public interest, then it must be further established that the publication acted with "malice."New York Times v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686.The Supreme Court has imposed burdens on a party suing a publication in order to protect First Amendment rights of free speech.A plaintiff cannot avoid the constitutional protections afforded to publications by alleging as an alternative theory "the negligent infliction of harm."An allegation of mere negligence negates the Supreme Court's malice requirement--it is the very antithesis.For a publication to be liable for a false news report, the false information must be promulgated, not negligently or as a result of misinformation, but with knowledge of its falsity or with reckless disregard of minimal standards for ascertaining truth.St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262;Chapadeau v. Utica Observer-Dispatch Inc., 38 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 341 N.E.2d 569.

The publication of the names and obituaries of those who have just died is clearly a matter of public interest.It is plain that the publication of false information through mistake, or, as appears to be the case here, as the result of some third person taking the trouble through malice or a warped sense of humor, to put in a paid death notice, cannot give rise to liability.When a death notice is called in (usually by a funeral director), it would be unreasonable to postulate a legal duty owed by the publication to the person reported deceased and his family.While some may undertake it, there is no legal obligation to check out the accuracy of a death notice by verifying with the grieving family that the person as to whom notice had been received was really and truly dead.In dealing with paid obituary notices, the possibilities of prank or error are so remote that independent verification need not be made in each case.

The complaint founders on another ground.The law does recognize a cause of action for intentional infliction of emotional harm (SeeMurphy v. American Home58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86;Cullen v. Nassau County Civil Service Commission, 53 N.Y.2d 492, 442 N.Y.S.2d 470, 425 N.E.2d 858;Halio v. Lurie, 15 A.D.2d 668).It is somewhat akin to prima facie tort (the intentional infliction of temporal damage employing otherwise legal means without justification, the equivalent of "disinterested malevolence").Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324;Burns Jackson Miller Summit and Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459;American Bank and Trust Co. v. Federal Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 65 L.Ed. 983.

Emotional distress, injuries to one's feelings, claims of...