Kerwick v. ORANGE COUNTY PUBL'N DIV. OF OTTAWAY NEWSPAPERS, INC.

53 N.Y.2d 625 (1981)

Robert Kerwick, Appellant, v. Orange County Publications Division of Ottaway Newspapers, Inc., Respondent.

Court of Appeals of the State of New York.

Argued February 11, 1981.

Decided March 24, 1981.

Stephen L. Oppenheim for appellant.

Joseph Sluzar for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*626MEMORANDUM.

The order of the Appellate Division should be reversed, with costs.

*627On the publisher's motion for summary judgment it was not disputed that the editorial complained of was factually false. The publisher's editor admitted in the course of his examination before trial that his conduct with respect to the factual material contained in the editorial did not "meet with the standards of [the] profession in information gathering and dissemination" as he understood them, in that there was "Reliance on memory rather than search of material, or original research". This admission, unaccompanied by any explanation or justification, constituted evidentiary proof in admissible form showing facts sufficient to require a trial on the issue of malice. That a retraction was promptly published might be considered evidence of lack of malice in certain instances but would not be sufficient as a matter of law for that purpose.

Accordingly, it was error to grant the motion for summary judgment.

Order reversed, with costs, and defendant's motion for summary judgment denied in a memorandum.