Russo v. Padovano

• Decision Date: 13 November 1981
• Citation: 446 N.Y.S.2d 645,84 A.D.2d 925
• Parties: , 38 A.L.R.4th 868 Anthony A. RUSSO, Jr., Appellant, v. Dan PADOVANO, Steven Rogers, Syracuse Herald Journal, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 645

446 N.Y.S.2d 645

84 A.D.2d 925, 38 A.L.R.4th 868

Anthony A. RUSSO, Jr., Appellant, v. Dan PADOVANO, Steven Rogers, Syracuse Herald Journal, Respondents.

Supreme Court, Appellate Division Fourth Department.

Nov. 13, 1981.

Rinaldi & Rinaldi, Syracuse by John Rinaldi, Syracuse, for appellant.

Bond, Schoeneck & King, Syracuse by S. Paul Battaglia, Syracuse, for respondents.

Before CARDAMONE, J. P., and CALLAHAN, DOERR, DENMAN and MOULE, JJ.

MEMORANDUM:

Plaintiff Anthony A. Russo operated a counseling service and initiated a "help hotline referral service." Plaintiff's wife contacted defendant Syracuse Herald-Journal and requested publicity for the hotline service. In connection therewith she forwarded to the Herald-Journal a newspaper article about plaintiff and several of his professional cards which represented that he was a psychotherapist, a religious counsellor, and a marriage and family counsellor. Defendant Padovano, a reporter for the Herald-Journal, was assigned to investigate plaintiff's background and the operation of the hotline referral service. Under Padovano's byline the Herald-Journal published two articles concerning plaintiff which gave rise to the underlying action for libel. Plaintiff claims that the articles portrayed him as "holding himself out to the general public as a medical doctor," a "phony doctor," a "person with a fraudulent profession," and a "person not worthy of belief." After joinder of issue and the filing of plaintiff's answers to interrogatories, defendants Herald-Journal, Padovano and Steven Rogers, an editor of the newspaper, moved for summary judgment dismissing the complaint. Plaintiff appeals from the order granting that motion.

Special Term found, and we agree, that the subject articles were libelous per se. It is for a court to decide in the first instance whether the writings are susceptible to the particular defamatory meaning which plaintiff ascribes to them (Tracy v. Newsday, Inc., 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 155 N.E.2d 853; Handelman v. Hustler Magazine, Inc. (D.C.N.Y.) 469 F.Supp. 1048; Prosser, Torts § 111, pp. 747-748). In carrying out that function, the articles should be read as a whole and the statements should be construed together and measured by the effect they would have on the average reader (James v. Gannett Co., 40 N.Y.2d 415, 419-420, 386 N.Y.S.2d 871, 353 N.E.2d 834; November v. Time, Inc., 13 N.Y.2d 175, 178-179, 244 N.Y.S.2d 309, 194 N.E.2d 126; Tracy v. Newsday, Inc., supra, 5 N.Y.2d at p. 137, 182 N.Y.S.2d 1, 155 N.E.2d 853). Read in that manner the statements specified in the amended complaint, as well as the articles containing them, are clearly susceptible to an interpretation that plaintiff was fraudulently representing himself to the public as a medical doctor or licensed psychologist. Since such interpretation would expose plaintiff to public contempt, ridicule, aversion or disgrace (Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. den. 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456) and would affect plaintiff in his business by imputing fraud, dishonesty, misconduct or unfitness (Four Star Stage Light v. Merrick, 56 A.D.2d 767, 392 N.Y.S.2d 297; see also Terry v. County of Orleans, 72 A.D.2d 925, 926, 422 N.Y.S.2d 826), the articles constitute libel per se. Accordingly, plaintiff has set forth a prima facie case by alleging writings susceptible to a defamatory meaning and by alleging the falsity of that imputation (see Rinaldi v. Holt, Rinehart & Winston, supra, 42 N.Y.2d at p. 380, 397 N.Y.S.2d 943, 366 N.E.2d 1299). In order to prevail on their motion for summary judgment, defendants must establish a defense of justification or privilege sufficiently to warrant judgment as a matter of law (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Defendants claim that the defamatory statements specified in the amended complaint were either true or were instances of permissible opinion or "neutral reportage". However, the libel which is at the heart of this action emanates not from the falsity of any of the specified statements but from the meaning ascribed to them when read in context and taken as a whole. "A plea of truth as justification must be as broad as the alleged libel and must establish the truth of the precise charge therein made" (Crane v. New World Tel. Corp., 308 N.Y. 470, 475, 126 N.E.2d 753; 34 N.Y.Jur., Libel and Slander, § 80, p. 555). Nothing in defendants' affidavit establishes the truth of the specific libel claimed by plaintiff and it must remain for resolution by the trier of fact. Additionally, though various statements specified by plaintiff may be characterized as permissible opinion, the precise libel charged cannot. It amounts to an accusation of fraud and personal dishonesty which is not protected opinion (Rinaldi v. Holt, Rinehart & Winston, supra, 42 N.Y.2d at p. 382, 397 N.Y.S.2d 943, 366 N.E.2d 1299). Finally, the claim of "neutral reportage" is without merit. Far from merely reporting the opinion of others, the articles state a number of other facts and opinions supporting the implication of fraud and professional misconduct by plaintiff. "publisher who in fact espouses or concurs in the charges made by others * * * cannot rely on a privilege of...