Sprewell v NYP Holdings, Inc.

[*1] Sprewell v NYP Holdings, Inc. 2006 NY Slip Op 50816(U) [11 Misc 3d 1091(A)] Decided on April 7, 2006 Supreme Court, New York County Friedman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 7, 2006
Supreme Court, New York County

Latrell F. Sprewell, Plaintiff,

against

NYP Holdings, Inc., MARC BERMAN and JOHN DOES 1 & 2, Defendants.



122923/02

Marcy S. Friedman, J.

In this defamation action, defendants NYP Holdings, Inc. ("NYP"), the publisher of the New York Post newspaper (the "Post"), and Marc Berman, a Post reporter, move for summary judgment dismissing the complaint. By separate motion, plaintiff Latrell Sprewell, who was a player with the New York Knicks basketball team at the time of the alleged defamation, seeks an order, pursuant to CPLR 3126, precluding defendants from relying upon confidential sources in the determination of the summary judgment motion. The motions are consolidated for disposition.

The allegations of the complaint, and the newspaper articles at issue, were discussed at length in a prior decision and order of this court, dated June 30, 2003, which denied defendants' motion to dismiss. In brief, the complaint alleges that a series of articles published in the Post in October 2002 damaged plaintiff Sprewell's reputation in two respects: first, by reporting that he fractured his hand after taking a swing at someone attending a party on his boat; and, second, by suggesting that he deliberately concealed the injury from the Knicks' management for up to three weeks between the date of the injury and the team's first practice.[FN1] [*2]

It is undisputed that the statements in the articles about the altercation on plaintiff's boat were based on the reports of two confidential sources who allegedly witnessed the events, but refused to go "on the record" and to permit their names to be used for purposes of the articles. Throughout the course of discovery in this action, defendants have invoked New York's Shield Law (New York Civil Rights Law § 79-h [b]) in declining to reveal the identities of these sources.

Defendants claim that they are entitled to summary judgment because there is no evidence that they acted with constitutional malice in publishing the articles. Plaintiff does not dispute that he is a "public figure" and that in order to recover he must therefore demonstrate actual malice under the standard set forth in New York Times Co. v Sullivan (376 US 254 [1964].) (P.'s Memo. In Opp. To Summary Judgment Motion at 1-2, 16.) Rather, he contends that because defendants' claim of belief in the truth of the published statements "refers entirely to belief of information from confidential sources," defendants' invocation of the confidential source privilege under the Shield Law precludes summary judgment as a matter of law. (Id. at 2.)

Section 79-h (b) of the Shield Law provides, in pertinent part, that "no professional journalist * * * shall be adjudged in contempt by any court in connection with any civil or criminal proceeding * * * for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news coming into such person's possession in the course of gathering or obtaining news for publication * * *." This privilege also applies to employers or supervisors of the journalist. (Civil Rights Law § 79-h [f].)

As the Court of Appeals has explained, while the Shield Law exempts professional journalists from contempt for refusal to disclose confidential sources, "the Legislature has never established an absolute right or granted journalists complete immunity from all legal consequences of refusing to disclose evidence relating to a news source." (Oak Beach Inn Corp. v Babylon Beacon, Inc., 62 NY2d 158, 165 [1984], cert denied 469 US 1158 [1985].) Thus, " the statutory [exemption] * * * from contempt' cannot be fairly read to include general exemption from the sanctions authorized by CPLR 3126, most of which function to prevent a party who has refused to disclose evidence from affirmatively exploiting or benefiting from the unavailability of the proof during the pending civil action." (Id. at 166.) However, the basic policy of the Shield Law in protecting journalists' use of confidential news sources should not be subverted by imposition of CPLR 3126 sanctions. (Id. at 168.) As the Court of Appeals has further explained:

* * * [I]f fully utilized some of those sanctions, such as the power of the court to strike pleadings (CPLR 3126, subd 3) may be only theoretically less drastic than contempt in a particular case. A newspaper involved in a substantial libel action may well find the threat of contempt less intimidating than the thought of being entirely stripped of its defenses if it continues to preserve the confidentiality of its source. This type of practical consideration should be taken into account whenever CPLR 3126 is invoked against a newspaper or journalist for failure to disclose a source in a civil case. The consequences of nondisclosure imposed pursuant to the CPLR should not create new obstacles to newsgathering or [*3]undermine the strong legislative policy expressed in the Shield Law. The general rule, that the demanding party should not be granted more relief for nondisclosure than is reasonably necessary to protect legitimate interests, should be applied with special force in cases involving nondisclosure of sources by newspapers and journalists.

(Id. at 166-167 [internal citation omitted]; Sands v News Am. Publ. Inc., 161 AD2d 30 [1st Dept 1990]; Collins v Troy Publ. Co., 213 AD2d 879 [3d Dept 1995].)

Applying these principles, the court holds that defendants may not rely on the confidential sources to show that they did not act with actual malice in publishing the articles. The confidential sources were the only basis for the potentially defamatory statements in the articles that plaintiff fractured his hand when he swung at a guest on his boat, missed, and hit a wall. All of the other information that defendant Berman obtained in investigating the incident came from non-eyewitnesses. At most, such information for example, that plaintiff sustained a "boxer's fracture" and that such a fracture is most commonly caused by hitting a hard object like a wall or pole with a clenched fist corroborated that the mechanism of the injury was consistent with that described by the confidential eyewitnesses. It fell far short of corroborating that plaintiff was involved in a fight and swung at someone. Not surprisingly, therefore, in claiming that they did not publish the articles with malice, defendants rely primarily on defendant Berman's belief in the trustworthiness of the account given by the confidential sources. (D.'s Memo. Of Law In Support of Motion for Summary Judgment at 25-27.)

The identity of the confidential sources is thus clearly material to this action as it bears directly on the issue of malice specifically, whether the confidential eyewitnesses were reliable sources for the articles or whether defendants' reliance upon them showed a reckless disregard for the truth. (See Sands, 161 AD2d at 36; Collins, 213 AD2d at 881.) Under similar circumstances, where the newscaster-defendants relied on undisclosed sources for verification of their reporting, and "offer[ed] this verification as proof' of their responsibility," the Appellate Division found that "they have put in issue the very privilege upon which they rely. They are using the Shield Law' affirmatively as a sword to prevent challenge by the plaintiff." (Greenberg v CBS Inc., 69 AD2d 693, 708-709 [2d Dept 1979].)[FN2] This court likewise finds that defendants have put the privilege in issue, and that they may not rely on the confidential sources in support of their showing on their summary judgment motion that they did not act with malice. (See id. at 709.)

In so holding, the court rejects defendants' contention that such preclusion is broader than necessary to protect plaintiff's legitimate interests. This is not a case in which the statements that defendants published were supported by sources in addition to their confidential source, and in which an order precluding defendants from also relying on the existence of the confidential source would arguably be overbroad. (Compare Bement v N.Y.P. Holdings, Inc., Sup Ct, NY County, Aug. 22, 2001, Diamond, J., Index No. 109793/99.) [*4]

The court also rejects defendants' contention that plaintiff waived the right to seek sanctions under CPLR 3126 as a result of his failure to move during the discovery process for an order compelling defendants to disclose the identities of their confidential sources. This contention is unsupported by any legal authority. Moreover, in the leading cases, a CPLR 3126 motion has been the procedural vehicle used to raise the issue of the appropriate remedy, on a summary judgment motion or at trial, for nondisclosure of confidential sources whose identities are otherwise protected under the Shield Law. (See Oak Beach Inn Corp. v Babylon Beacon, Inc., 62 NY2d 158, supra; Sands v News Am. Publ. Inc., 161 AD2d 30, supra.)

The court finds unpersuasive defendants' further contention that they should not be precluded from relying on their confidential sources because plaintiff did not attempt through his own efforts to discover the identities of the confidential sources, although he was purportedly able to do so as they were people who had allegedly been on his boat. (D.'s Memo. In Opp. To Motion to Preclude at 24-27.) This contention is also unsupported by any legal authority. Further, it would turn the discovery process on its head by shifting the burden to plaintiff to investigate, notwithstanding that he is entitled under the usual discovery rules to full disclosure of all matter material and necessary in the prosecution of the action. (See CPLR 3101[a].) Defendants' additional bases for opposing an order precluding them from relying on their confidential sources are without merit.

Without the confidential sources, defendants fail as a matter of law to make a prima facie showing of the absence of malice in their publication of statements as to how the incident on the boat occurred. Their motion for summary judgment must accordingly be denied to the extent that it seeks to dismiss plaintiff's claims based on such statements. This denial of summary judgment will not, however, be conclusive of the remedies to be imposed at trial for nondisclosure of the confidential sources. The parties agreed at the oral argument of the motions to defer this issue to the trial court. Moreover, substantial authority holds that denial of summary judgment based on nondisclosure of confidential sources should not preclude defendants from "elect[ing] the future course of their defense." (See Greenberg, 69 AD2d at 709.)[FN3]

Finally, the court turns to the branch of defendants' motion for summary judgment dismissing plaintiff's libel claims based on statements in the Post articles suggesting that plaintiff deliberately delayed in reporting his injury to Knicks' management. Defendants argue that these statements were substantially true and that they did not publish the statements with actual malice. Plaintiff counters that the statements were not true.

It is axiomatic that truth is a complete defense to a defamation claim. (Dillon v City of New York, 261 AD2d 34 [1st Dept 1999]; Schwartzberg v Mongiardo, 113 AD2d 172, 174 [3d [*5]Dept 1985], lv denied 68 NY2d 602 [1986]. See Rinaldi v Holt, Rinehart & Winston, Inc., 42 NY2d 369 [1977], cert denied 434 US 969.) "[T]ruth need not be established to an extreme literal degree. Provided that the defamatory material on which the action is based is substantially true (minor inaccuracies are acceptable), the claim to recover damages for libel must fail." (Love v William Morrow & Co., 193 AD2d 586, 587 [2d Dept 1993] [internal citations omitted]; Ingber v Lagarenne, 299 AD2d 608 [3d Dept 2002], lv denied 99 NY2d 507 [2003].)

Here, the complaint alleges that various of the articles injured plaintiff in his trade, business or profession "by implying that Mr. Sprewell deliberately concealed an injury, thus violating his employment contract with the Knicks." (E.g., Complaint, ¶¶ 69, 81.) Defendants correctly point out that the articles did not state that plaintiff violated his contract, but rather that he "might" or "may" have violated his contract by not promptly reporting his injury. (See D.'s Memo. Of Law In Support of Motion for Summary Judgment at 29.) The articles were either true or expressions of opinion to that extent. However, on this record the court cannot find that the articles were true to the extent that they also implied that plaintiff's delay in reporting his injury was deliberate. It is undisputed that the Collective Bargaining Agreement ("CBA") required plaintiff (like every other player) to provide "prompt notice of any injury, illness or medical condition suffered by him that is likely to affect adversely the player's ability to render the services required under the contract." Given that the parties dispute whether plaintiff's injury was sufficiently serious to be likely to affect his ability to train or play, the record does not demonstrate as a matter of law that plaintiff was even required to report the injury and therefore that any delay in reporting the injury may have been improper.

Defendants demonstrate as a matter of law, however, that the statements in the articles regarding plaintiff's delay in reporting his injury or possible violation of his contract were not published with actual malice. As plaintiff is conceded to be a public figure, he is not entitled to recover damages for defamation unless he can demonstrate with "convincing clarity" that the statements at issue were made with actual malice that is, with knowledge that the statements were false or with reckless disregard of whether they were false. (See Bose Corp. v Consumers Union of U.S., Inc., 466 US 485 [1984]; Freeman v Johnston, 84 NY2d 52 [1994], cert denied 513 US 1016.) In order to demonstrate reckless disregard, plaintiff must in turn establish "that defendants in fact entertained serious doubts as to the truth of [the] publication or that they actually had a high degree of awareness of its probable falsity." (Sweeney v Prisoners' Legal Servs. of New York, 84 NY2d 786, 793 [1995] [quoting Harte-Hanks Communications v Connaughton, 491 US 657, 667 [1989].)

The convincing clarity or clear and convincing evidence standard applies to plaintiff's burden in opposing a motion for summary judgment. (Freeman, 84 NY2d at 57.) Thus, "[w]hen determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times [v Sullivan]. For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence." (Id. at 58 [quoting Anderson v Liberty Lobby, 477 US 242, 254 [1986]; Khan v New York Times Co., 269 AD2d 74 [1st Dept 2000].)

In support of the motion, defendants submit evidence that based on a briefing by the [*6]Knicks, defendant Berman accurately reported that plaintiff had not informed the Knicks of the injury to his hand until he appeared for training on September 30, 2002, some two to three weeks after the injury occurred. (Berman Aff. In Support of Summary Judgment Motion, ¶ 7.)[FN4] They also submit evidence that on October 4, 2002, defendant Berman was informed by the Knicks' Director of Publicity that the Collective Bargaining Agreement requires players to report injuries in a timely manner and that, on the same day, he obtained the exact wording of the CBA provision from the National Basketball Players Association. (Id., ¶ 47.) The October 5 article referred to the CBA and stated: "Sprewell didn't inform the Knicks about the injury until 10 days later is that prompt? That question remains to be answered." The October 7 article stated: "Sprewell may have breached his contract by trampling all over a clause in the Collective Bargaining Agreement by not reporting his injury promptly." The Post articles presented three other instances of plaintiff's disregard of Knicks' rules and reported the delay as one in a pattern of incidents.

In opposition, plaintiff submits no evidence whatsoever that these statements were published with knowledge of their falsity or reckless disregard of their truth or falsity. Indeed, plaintiff does not even claim that defendants entertained serious doubts as to the truth of the statements. At most, plaintiff contends that there is an issue of fact as to actual malice because the CBA only required reporting of injuries that would be "likely to affect adversely" plaintiff's ability to play, and there is an issue of fact as to whether plaintiff's injuries rose to that level. (P.'s Memo. Of Law In Opp. To Summary Judgment Motion at 29-30.) Clearly, however, a jury could not find by clear and convincing evidence that defendants' statements were published with actual malice, given that the statements merely raised the issue of whether the Collective Bargaining Agreement "may" have been breached, and thus implicitly recognized the existence of a potential dispute about that issue. Defendants' motion for summary judgment will accordingly be granted as to such statements.

It is accordingly hereby ORDERED that defendants' motion for summary judgment is granted to the extent of dismissing the complaint only to the extent that it alleges defamatory matter that tends to injure plaintiff in his trade, business or profession by implying that plaintiff deliberately concealed an injury, thus violating his employment contract with the Knicks; and it is further

ORDERED that the remaining claims in the complaint shall continue; and it is further

ORDERED that plaintiff's motion to preclude is granted to the following extent: Defendants are precluded from relying on confidential sources in their summary judgment motion. In the event the parties are unable to reach agreement on the remedies to be imposed at trial for nondisclosure of confidential sources, they shall seek relief from the trial judge at least 30 days before the first date set for trial.

This constitutes the decision and order of the court.

Dated: New York, New York

April 7, 2006

________________________

MARCY FRIEDMAN, J.S.C. Footnotes

Footnote 1:The June 30, 2003 decision determined that the statements were reasonably susceptible to a defamatory connotation. The court held that the statements about the incident on the boat, which also included statements that plaintiff asked his guests not to mention the incident and that no police report was filed, could be read as imputing the commission of the crime of attempted assault to plaintiff. As to the statements concerning plaintiff's delay in reporting his injury, the court held that whether such delay was deliberate or merely negligent, the statements concerned plaintiff's adherence to the rules for team members, reflected on his performance as a professional athlete, and were therefore susceptible to a defamatory connotation that tends to injure plaintiff in his business or profession.

Footnote 2:As Greenberg involved a private person, the gross irresponsibility standard, rather than the actual malice standard, was applicable.

Footnote 3:In Greenberg the Appellate Division held: [T]he fair solution, one which does not attenuate the policy considerations of the [Shield Law], is to allow defendants to elect the future course of their defense. At trial, if the defendants opt to rely on their statutory privilege, they should be precluded from any use of those sources and information as proof of verification or evidence of responsibility. On the other hand, if they choose to fully disclose their investigation, no limitation of the defense will occur. (69 AD2d at 709. Accord Sands, 161 AD2d at 37; Collins, 213 AD2d at 880-881.)

Footnote 4:While this evidence is presented in the form of an affidavit from defendant Berman, plaintiff does not claim that defendant's affidavit differs in any material respect from his deposition testimony.