Mills v Raycom Media, Inc.

Mills v Raycom Media, Inc. 2006 NY Slip Op 08570 [34 AD3d 1352] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

David Mills, Appellant, v Raycom Media, Inc., et al., Respondents.

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Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered May 2, 2005. The order granted defendants' motions to dismiss the first amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this defamation action against Raycom Media, Inc., Raycom, Inc., WSTM-TV, Inc. and James Kenyon (collectively, Raycom defendants) and against defendant Marjory York based upon a two-part investigative series entitled "A Cry for Help." The series was aired on WSTM-TV News in February 2002, and a version of the series was published on WSTM-TV's Web site. According to the series, the Cayuga County Family Court and the Cayuga County Department of Health and Human Services failed to prevent defendant Marjory York's child from being exposed to plaintiff despite numerous allegations that plaintiff had sexually abused the child. We note at the outset that plaintiff does not address in his brief the propriety of the dismissal of the first amended complaint against defendants WSTM-TV, Inc. or Raycom, Inc. and thus is deemed to have abandoned any issue with respect to the dismissal of the first amended complaint against those defendants (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).

With respect to the remaining corporate defendant and its employee, defendant James Kenyon, we conclude that Supreme Court properly granted that part of the motion of the Raycom defendants seeking dismissal of the first amended complaint against those two defendants [*2]pursuant to Civil Rights Law § 74 and CPLR 3211 (a) (1) and (7). Civil Rights Law § 74 provides in relevant part that "[a] civil action cannot be maintained against any person . . . or corporation[ ] for the publication of a fair and true report of any judicial proceeding . . . ." The Raycom defendants submitted evidence establishing that, in a neglect proceeding in Cayuga County Family Court, plaintiff was alleged to have sexually abused the child at issue in the series. The neglect proceeding was eventually resolved pursuant to a stipulation in which plaintiff relinquished his visitation and custody rights with respect to the child and the neglect petition was dismissed. We conclude that defendants Raycom Media, Inc. and James Kenyon thereby established that the material in the series was a fair and true report of the Family Court neglect proceeding within the meaning of Civil Rights Law § 74 (see Glendora v Gannett Suburban Newspapers, 201 AD2d 620 [1994], lv denied 83 NY2d 757 [1994]; cf. Seltzer v Fields, 20 AD2d 60, 63-64 [1963], affd 14 NY2d 624 [1964]; Lacher v Engel, 33 AD3d 10 [2006]). Finally, we conclude that the court properly granted the motion of defendant Marjory York seeking dismissal of the first amended complaint against her as time-barred (see CPLR 215 [3]). Present—Scudder, J.P., Kehoe, Martoche and Green, JJ.