Ronald Geraci v. Thomas Probst
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 148
Ronald Geraci,
Respondent,
v.
Thomas Probst, &c., et al.,
Appellants.
Evan H. Krinick, for appellants.
Michael T. Hopkins, for respondent.
LIPPMAN, Chief Judge:
The primary issue presented by this libel action is
whether it was error to admit into evidence a republication of
defendant Thomas Probst's defamatory statement, made years later
without his knowledge or participation.
We find that it was
error and we therefore modify to vacate the damage award.
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No. 148
Plaintiff Geraci and defendant Probst1 are former
business associates who had been partners in an enterprise
engaged in selling fire trucks to fire districts on Long Island.
Geraci was also a commissioner of the Syosset Fire District.
In
March 2002, after the business relationship soured, Geraci sent a
letter to the Board of Fire Commissioners stating, among other
things, that he "ha[d] not nor [would he] ever profit from any
sales related to the Syosset Fire District."
In response, Probst wrote a letter to the Board of Fire
Commissioners disputing Geraci's representation.
Probst wrote
that "[t]o be charitable," plaintiff's statement was
"inaccurate."
Probst stated that he was including a commission
statement from the manufacturer showing that their business had
received a commission from the sale of a Syosset rescue vehicle.
Probst further represented that "Mr. Geraci shared in that
commission."
It is undisputed that the accusation that Geraci
had received any commission relating to sales of Syosset vehicles
was false.
Plaintiff commenced this defamation action in March
2003 to recover for damages incurred as a result of Probst's
statement.
During the trial, plaintiff sought to introduce into
evidence portions of an article that had appeared in Newsday on
1
Plaintiff brought suit against Thomas Probst individually
and d/b/a Hendrickson Truck Center, Hendrickson Enterprises,
Inc., Hendrickson Transport, Inc., and Hendrickson Truck Parts,
Inc.
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No. 148
November 19, 2005 -- more than two and a half years after
plaintiff brought suit and more than three years after Probst
wrote his letter.
The article, as redacted, stated that the
Nassau County District Attorney's office was investigating
certain transactions involving the sale of fire apparatus to the
Syosset Fire District and that a former business partner had
alleged that one of the deals "included a hidden commission for
Geraci, even though he had told his fellow commissioners that
he'd make nothing from it."
The article further stated that "an
estranged business partner" had alleged that Geraci had taken a
$16,000 commission on one of the truck sales and that, although
Geraci denied same, a senior official with the truck manufacturer
confirmed that the price of the truck included a $16,000
commission.
A large color photograph of Geraci also appeared
with the article.
When the parties first discussed the issue of whether
the article should be admitted, defense counsel noted the long
delay between Probst's letter and the Newsday article and argued
that Probst had nothing to do with the article -- he had not
contacted Newsday and was not interviewed for the article -- and
that it would be inflammatory and prejudicial to his client.
court reserved decision, but indicated that it was "not crazy
about some further investigative report down the road apiece."
When the parties subsequently revisited the issue, plaintiff's
counsel argued that the article was not being offered as a
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The
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No. 148
republication, but on the issue of damages to show how far the
allegations had circulated.
Plaintiff's counsel also argued
that, even if it could be considered republication, Probst would
still be responsible for it because he should have reasonably
anticipated that it would be newsworthy.
Defense counsel
repeated his earlier arguments and noted that plaintiff could
have sued Newsday directly.
The court ultimately admitted the
article.
The court instructed the jury that Probst's statement
was defamatory per se because it alleged that plaintiff had
committed a crime -- a violation of the General Municipal Law
related to the exercise of his public office -- and that the
statement was false.
The sole question left for the jury on the
issue of liability was whether plaintiff had proven by clear and
convincing evidence that Probst made the statement with actual
malice.2
The jury found in plaintiff's favor and awarded him
$2,950,000 in present and future damages, including $500,000 in
punitive damages.
Supreme Court granted defendants' motion to
set aside the jury verdict, finding it excessive, and granted
2
The jury answered the following interrogatory in the
affirmative: "Did the plaintiff, Ronald Geraci, prove by clear
and convincing evidence that when defendant, Thomas Probst, made
the statement the defendant knew the statement was false? or the
defendant had serious doubts as to the truth of the statement? or
the defendant made the statement with a high degree of awareness
that the statement was probably false?"
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No. 148
defendants a new trial unless plaintiff consented to a reduced
award of $800,000, including $50,000 in punitive damages.
Plaintiff consented to the reduced award and both parties
appealed.
The Appellate Division affirmed the judgment and
dismissed plaintiff's cross appeal for lack of aggrievement (61
AD3d 717 [2d Dept 2009]).
The Court found defendants' argument
that the trial court erred by allowing evidence of the
republication of Probst's defamatory statements in the Newsday
article unpreserved for review.
The Court also rejected
defendants' remaining arguments, including the argument that
Supreme Court erred by instructing the jury that Probst's
statement was defamatory per se.
This Court granted defendants
leave to appeal and we now modify.
As a threshold matter, we disagree with the Appellate
Division that defendants' republication argument is unpreserved
for review.
As noted above, the parties discussed the issue with
the court on more than one occasion and, although defendants did
not expressly frame their argument in terms of republication,
plaintiff did, and the issue was placed squarely before the
court.
The arguments were sufficient to alert Supreme Court to
the relevant question and sufficiently preserved the legal issue
for appellate review.
Our republication liability standard has been
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No. 148
"It is too well
settled to be now questioned that one who utters a slander, or
prints and publishes a libel, is not responsible for its
voluntary and unjustifiable repetition, without his authority or
request, by others over whom he has no control and who thereby
make themselves liable to the person injured, and that such
repetition cannot be considered in law a necessary and probable
consequence of the original slander or libel" (Schoepflin v
Coffey, 162 NY 12, 17 [1900]).
The rationale behind this rule is
that each person who repeats the defamatory statement is
responsible for the resulting damages (see Schoepflin, 162 NY at
18).
The risk of admitting such evidence is that the jury may
"charge against defendant a separate, distinct libel (not pleaded
in [the] complaint) by someone else, contrary to the rule that
'[t]he original publisher of a libel is not responsible for its
subsequent publication by others'" (Macy v New York World-Tel.
Corp., 2 NY2d 416, 422 [1957]).
Applying this standard, we find that the defendants are
not responsible for any harm plaintiff may have suffered from the
2005 Newsday article and that the article should not have been
admitted into evidence.
Plaintiff failed to demonstrate that
3
Notably, in a recent case involving the use of electronic
media we stated that "[r]epublication . . . occurs upon a
separate aggregate publication from the original, on a different
occasion, which is not merely 'a delayed circulation of the
original edition'" (Firth v State of New York, 98 NY2d 365, 371
[2002] [citation omitted]).
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No. 148
Probst had any connection whatsoever with the Newsday article.
Notably, the article was published more than three years after
Probst wrote the letter to the Board.
There is no evidence that
Probst contacted anyone at Newsday in order to induce them to
print his allegations.
Nor is there evidence that anyone at
Newsday contacted Probst regarding the story.
Finally, there is
no indication that Probst had any control over whether or not
Newsday published the article.
"[A]bsent a showing that
[defendant] approved or participated in some other manner in the
activities of the third-party republisher" (Karaduman v Newsday,
Inc., 51 NY2d 531, 540 [1980]), there is no basis for allowing
the jury to consider the article containing the republished
statement as a measure of plaintiff's damages attributable to
defendants.
Plaintiff asserts that defendants should be liable for
the damages caused by the Newsday article because republication
was to be reasonably expected.
Specifically, plaintiff argues
that when allegations of this type of misconduct are made against
a public official, it is reasonable as a matter of law to expect
that those allegations will be newsworthy and that it would then
be a matter for the fact-finder as to whether it would be
objectively reasonable to expect republication in the media under
the facts of a particular case.
It is true that in dicta in Karaduman we left open the
possibility that three reporters could have been held legally
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No. 148
responsible for the republication of their article in book form
"had plaintiff been able to demonstrate that they participated in
the original publication with knowledge or a reasonable
expectation that republication was likely" (51 NY2d at 541 n 2).
This standard also appears in the Restatement (see Restatement
[Second] of Torts § 576 [c] ["The publication of a libel or
slander is a legal cause of any special harm resulting from its
repetition by a third person if, but only if, . . . the
repetition was reasonably to be expected"]).
But the Restatement "foreseeability" standard is not
nearly as broad as plaintiff or the dissent suggest.
Comment d
explains that a republication may be foreseeable "[i]f the
defamation is repeated by a person to whom it is published" if
the originator of the statement "had reason to expect that it
would be so repeated."
The obvious example is when a person
makes a defamatory statement to a newspaper reporter who, in
turn, repeats it in a newspaper article -- the fact pattern in
Campo v Paar (18 AD2d 364 [1st Dept 1963]), a case we cited in a
footnote in Karaduman.
The second example in comment d occurs
when the originator of a statement "widely disseminated the
defamation and thus intimated to those who heard it that he [or
she] is not unwilling to have it known to a large number of
people."
Neither of these circumstances is present here: Probst
never made any statements to Newsday reporters (and Newsday
apparently did not contact him before publishing the story), nor
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No. 148
did Probst "widely disseminate" the allegations concerning
plaintiff.
Thus, even if we were to adopt the Restatement's
foreseeability standard, it would not lead us to the conclusion
urged by plaintiff.
That we did not endorse such a broad standard of
foreseeability in Karaduman is evident from our decision the
following year in Rinaldi v Viking Penguin (52 NY2d 422 [1981]),
where we held that the authors of a book published in hardcover
form could not be held liable for republication when the book was
reissued as a softcover a year later, even though the author's
rights in the event of such a republication had been addressed in
the original publishing contract.
We rested our decision -- as
we do today -- on the fact that the authors "had no knowledge of
and played no role in" the republication or its implementation
(see Rinaldi, 52 NY2d at 435).
Defendants also argue that it was error for the trial
court to instruct the jury that his statement was defamatory per
se.
Whether particular statements are considered defamatory per
se is a question of law (see Golub v Enquirer/Star Group, 89 NY2d
1074, 1076 [1997]).
"Generally, a written statement may be
defamatory 'if it tends to expose a person to hatred, contempt or
aversion, or to induce an evil or unsavory opinion of him in the
minds of a substantial number of the community'" (Golub, 89 NY2d
at 1076, quoting Mencher v Chesley, 297 NY 94, 100 [1947]).
Damages will likewise be presumed for statements that charge a
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No. 148
person with committing a serious crime or that would tend to
cause injury to a person's profession or business (see Liberman v
Gelstein 80 NY2d 429, 435 [1992]).
Probst's statement alleged that plaintiff committed
acts constituting a misdemeanor in violation of the General
Municipal Law (see General Municipal Law §§ 801 ["no municipal
officer or employee shall have an interest in any contract with
the municipality of which he is an officer or employee, when such
officer or employee, individually or as a member of a board, has
the power or duty to . . . negotiate, prepare, authorize or
approve the contract or authorize or approve payment
thereunder"], 805).
The statement could likewise be considered
an allegation that would damage plaintiff's professional
reputation.
As such, there was no error in Supreme Court's
charge to the jury concerning defamation per se.
Defendants' remaining arguments are without merit.
Accordingly, the order of the Appellate Division should
be modified, without costs, by remitting the matter to Supreme
Court for a new trial as to damages only and, as so modified,
affirmed.
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Ronald Geraci v Thomas Probst, &c., et al.
No. 148
SMITH, J. (dissenting):
Under ordinary principles of tort law, Probst's libel
of plaintiff could be found by the jury to be a "legal cause" of
the harm plaintiff suffered from the repetition of that libel in
the Newsday article.
The Restatement says: "The publication of a
libel or slander is a legal cause of any special harm resulting
from its repetition by a third person if . . . the repetition was
reasonably to be expected" (Restatement [Second] of Torts § 576).
We seemed to adopt the Restatement rule in Karaduman v Newsday,
Inc. (51 NY2d 531, 541 n2 [1980]), where we strongly implied that
the original publishers of a libel could be "found legally
responsible for the republication" if they had "participated in
the original publication with . . . a reasonable expectation that
republication was likely."
But today the majority rejects this
rule in favor of one followed in two older cases, Schoepflin v
Coffey (162 NY 12 [1900]) and Macy v New York World-Tel. Corp. (2
NY2d 416 [1957]): that one who defames another is not liable for
repetition of the defamation without his consent by persons he
does not control.
The rule the majority adopts was devised for a
different world of defamation law, and the justification for it
has ceased to exist.
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No. 148
As the majority says, "[t]he rationale behind this rule
is that each person who repeats the defamatory statement is
responsible for the resulting damages" (majority op at 6, citing
Schoepflin, 162 NY at 18).
When Schoepflin and Macy were
decided, that rationale made sense: then, one whose reputation
was damaged by a newspaper story had a reasonable chance of
recovering damages from the newspaper, even if the newspaper had
innocently repeated an earlier slander or libel.
That era ended,
at least for public-official plaintiffs like the one in this
case, with New York Times Co. v Sullivan (376 US 254, 279-280
[1964]), which held that the First Amendment prohibits a public
official from recovering damages for defamation related to his
official conduct, unless he proves that the defamatory statement
was made "with knowledge that it was false or with reckless
disregard of whether it was false or not."
Under Times v
Sullivan, plaintiff here never had a realistic hope of recovering
from Newsday.
The damage that plaintiff suffered from the
dissemination of a false accusation of corruption to Newsday's
readers must either be paid by defendants or go uncompensated.
No post-Times v Sullivan case in our Court adopts the
Schoepflin/Macy rule.
Rinaldi v Viking Penguin (52 NY2d 422
[1981]), discussed by the majority (majority op at 9), is not an
exception.
The issue in Rinaldi was whether a republication was
"sufficient to start the . . . Statute of Limitations running
anew" (id. at 427).
That is not the question we have here.
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No. 148
not suggest that Newsday's republication of Probst's libel was a
new tort that would start a new statute of limitations period; I
do suggest that the republication was a reasonably foreseeable
consequence of the original tort.
The accusation that Probst made against plaintiff is a
serious one; a jury has found, on sufficient evidence, that he
made it either knowing it to be false or with serious doubt of
its truth; and there was sufficient evidence to support a finding
that Newsday's republication of it was reasonably to be expected.
I see no good reason why the jury should not have been allowed to
award damages based on the republication.
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Order modified, without costs, by remitting the case to Supreme
Court, Nassau County, for a new trial as to damages only and, as
so modified, affirmed. Opinion by Chief Judge Lippman. Judges
Ciparick, Graffeo, Read, Pigott and Jones concur.
Judge Smith dissents in an opinion.
Decided October 14, 2010
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