| Porcari v Gannett Satellite Info. Network, Inc. |
| 2008 NY Slip Op 03618 [50 AD3d 993] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Lawrence A. Porcari, Jr., Respondent, v Gannett SatelliteInformation Network, Inc., et al., Appellants. |
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In an action to recover damages for defamation, the defendants appeal from an order of theSupreme Court, Westchester County (Smith, J.), dated August 20, 2007, which denied theirmotion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff, an associate corporation counsel employed by the City of Yonkers, commencedthis action against the defendants to recover damages based upon defamatory statements abouthim which appeared in the September 20, 2006 issue of the Journal News Westchester(hereinafter Journal News). The article was written by the defendant William Hughes, a staffwriter for the Journal News. The article identified the plaintiff as an attorney who had beensanctioned by a New York City judge for frivolous conduct. It also stated that the plaintiff wasemployed as an attorney in the Office of the City of Yonkers Corporation Counsel but wassanctioned in the context of representing a client in a private practice matter. In fact, the attorneyagainst whom sanctions were imposed was Lawrence A. Porcari, the plaintiff's father, whomaintains an office in Yonkers for the private practice of law. The following day, the JournalNews published a retraction and a corrected follow-up story. The Supreme Court denied thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). We affirm.
The Supreme Court properly found that the defendants' statements were reasonablysusceptible of a defamatory meaning as they tended to disparage the plaintiff in his trade,business, or profession (see Aronson v Wiersma, 65 NY2d 592, 594 [1985]). Thus, theplaintiff was not required to plead or prove special damages (id. at 594; see Libermanv Gelstein, 80 NY2d 429, 434-435 [1992]).[*2]
The Supreme Court also correctly determined that theplaintiff was not required to plead or prove that the defamatory statements were published withactual malice since he, in his position as an associate corporation counsel, did not qualify as a"public official" under the standard enunciated by the United States Supreme Court over 40 yearsago in New York Times Co. v Sullivan (376 US 254 [1964]). The position of associatecorporation counsel is not a position of "such apparent importance that the public has anindependent interest in the qualifications and performance of the person who holds it, beyond thegeneral public interest in the qualifications and performance of all government employees"(Rosenblatt v Baer, 383 US 75, 86 [1966]; see Lambert v Corcoran, 209 AD2d674, 675 [1994]). Thus, the plaintiff was governed by the rule set forth by the Court of Appealsin Chapadeau v Utica Observer-Dispatch (38 NY2d 196, 199 [1975]) that a privateperson in a defamation action involving an issue of public concern must plead and prove that thepublisher "acted in a grossly irresponsible manner without due consideration for the standards ofinformation gathering and dissemination ordinarily followed by responsible parties". In thisregard, the Supreme Court properly determined that the allegations in the complaint alleged acause of action for defamation (seegenerally Sheridan v Carter, 48 AD3d 444 [2008]).
We also agree with the Supreme Court that the single instance rule did not apply here. Indefining this rule, the Court of Appeals in November v Time Inc. (13 NY2d 175, 178[1963]) explained that: "language charging a professional [person] with ignorance or mistake ona single occasion only and not accusing him [or her] of general ignorance or lack of skill cannotbe considered defamatory on its face and so is not actionable unless special damages arepleaded."
Here, the defamatory statements accuse the plaintiff of much more than a mere mistake,dereliction, or lapse in judgment on a single occasion, as they indicate that he had beensanctioned by a judge for ongoing frivolous conduct and noncompliance with prior court orders.Under such circumstances, the single instance rule is inapplicable (see Armstrong v Simon &Schuster, 85 NY2d 373, 379 [1995]).
The defendants' remaining contentions either are without merit or have been renderedacademic by this determination. Skelos, J.P., Dillon, Leventhal and Chambers, JJ., concur.