Udell v. New York News, Inc.

• Decision Date: 10 November 1986
• Citation: 124 A.D.2d 656,507 N.Y.S.2d 904
• Parties: Bernard H. UDELL, Respondent, v. NEW YORK NEWS, INC. d/b/a The Daily News, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 904

507 N.Y.S.2d 904

124 A.D.2d 656

Bernard H. UDELL, Respondent, v. NEW YORK NEWS, INC. d/b/a The Daily News, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 10, 1986.

Patterson, Belknap, Webber & Tyler, New York City (Harold R. Tyler, Jr., Michael B. Mukasey and Eugene M. Gelernter, of counsel), for appellant.

Albert J. Brackley, Brooklyn, for respondent.

Before MANGANO, J.P., and WEINSTEIN, NIEHOFF and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for libel, the defendant New York News, Inc. appeals from a judgment of the Supreme Court, Kings County (Aronin, J.), entered July 11, 1985, which is in favor of the plaintiff and against it, upon a jury verdict, in the principal sum of $650,000.

ORDERED that the judgment is reversed, on the facts and as an exercise of discretion, and a new trial is granted limited to the issue of damages only, without costs or disbursements, unless, within 30 days after service upon the plaintiff of a copy of this decision and order, together with notice of entry thereof, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages to the principal sum of $75,000, and to the entry of an amended judgment accordingly. In the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, with costs. The findings of fact as to liability are affirmed.

Viewing the statements complained of in the context of the challenged articles as a whole and construing them from the standpoint of the average reader (see, Aronson v. Wiersma, 65 N.Y.2d 592, 493 N.Y.S.2d 1006, 483 N.E.2d 1138; James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834, rearg. denied, 40 N.Y.2d 990, 390 N.Y.S.2d 1027, 359 N.E.2d 440; November v. Time Inc., 13 N.Y.2d 175, 244 N.Y.S.2d 309, 194 N.E.2d 126), we find that the record contains ample evidence to sustain the jury's determination that the allegedly libelous factual statements were both false and defamatory. Moreover, while we are cognizant of the fact that expressions of opinion are afforded constitutional protection (see, Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550 [1986]; Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, rearg. denied, 42 N.Y.2d 1015, 398 N.Y.S.2d 1033, 368 N.E.2d 289, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456; Tanner & Gilbert v. Verno, 92 A.D.2d 802, 460 N.Y.S.2d 48, appeal dismissed, 60 N.Y.2d 632, 467 N.Y.S.2d 354, 454 N.E.2d 937), recovery may be had for defamatory opinions where, as here, the plaintiff is able to demonstrate the falsity of the facts underlying those opinions and thereby "convince the triers of fact that the factual disparities would affect the conclusions drawn by the average reader regarding the validity of the opinions expressed" (Silsdorf v. Levine, 59 N.Y.2d 8, 15-16, 462 N.Y.S.2d 822, 449 N.E.2d 716, cert. denied, 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111; see, Ocean State Seafood v. Capital Newspaper Div. of Hearst Corp., 112 A.D.2d 662, 492 N.Y.S.2d 175).

Similarly, the record supports a finding that the defendant New York News, Inc. (hereinafter the News), "acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties" (Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 341 N.E.2d 569) in publishing the libelous statements. The jury was entitled to rely upon the trial evidence indicating that the News had reason to...