Zion v NYP Holdings, Inc.
Annotate this CaseDecided on December 17, 2004
Supreme Court, New York County
Sidney Zion, Plaintiff,
against
NYP Holdings, Inc., d/b/a the NEW YORK POST, and ROBERT McMANUS, Defendants.
115834/02
Barbara R. Kapnick, J.
Plaintiff Sidney Zion, a former freelance columnist for the New York Post ("the Post"), seeks to recover damages against defendants NYP Holdings, Inc., the publisher of the Post, and Robert McManus, the Post's editorial page editor and Zion's supervisor, for breach of contract (first cause of action) and defamation (second cause of action).
Specifically, plaintiff claims with respect to the first cause of action that he was terminated without cause in September 2001 and that he is owed additional money under his contract.
Plaintiff claims with respect to the second cause of action that McManus defamed him in a letter dated July 31, 2001 that McManus sent to plaintiff, as well as to Ken Chandler, who was publisher of the Post at the time, Col Allan, the editor in chief of the Post, and Mark Cunningham, one of the editorial page editors, accusing Zion of fabricating a column published on July 30, 2001 about whether Kathy Boudin, who was then jailed in connection with her role in the 1981 Brinks robbery, should be granted parole.
Defendants now move pursuant to CPLR § 3212 for summary judgment dismissing the second cause of action for defamation.
Zion had written in the July 30, 2001 column that "[t]he line on Kathy Boudin,...is that she should rot in jail for the murder of two cops whom she ambushed by convincing them to put down their arms." He further commented, "But don't bet the house against the line, which says against the evidence that she killed two cops."
McManus stated in his letter that he was "confused by the word 'line', taking it to mean early betting odds, or something of the sort." He indicated that he asked Adam Brodsky ("Adam"), the Deputy Editorial Page Editor who was editing the column, to contact Zion for clarification, and that Adam told him that Zion said that the "term was a reference to a growing anti-Boudin media outcry [*2]predicated on a willful misrepresentation of the facts of her case." McManus, however, wrote that [l]ate Sunday evening - alas, too late to do anything about it - I read the column again, in proof form. Then I went into Nexis looking for the 'line' you wrote of.I found a total 16 citations for 'Kathy Boudin' over the past 60 days. Apart from one headline, there was no reference to her as a 'cop-killer.' Not one article even accused her of killing cops.There is - was - no uproar. There is - was - no such 'line.'In this respect, you fabricated the column (emphasis supplied).And then you intentionally misled Adam when he asked for clarification.
This is unacceptable.
Zion contends that the claim of 'fabrication' constitutes defamation because it relates directly to his professional integrity.
It has been observed th at "any journalist, commentator or analyst is entitled not to be lightly characterized as inaccurate and dishonest or libelous." Buckley v. Littell, 539 F.2d 882, 896 (2nd Cir. 1976); cert. den. 429 U.S. 1062 (1977).
However, it is well settled in this State that where, as here, a statement of opinion "is accompanied by a recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts", the statement is "readily understood by the audience as conjecture" and is not actionable. Gross v. New York Times Company, 82 NY2d 146, 153 (1993). See also, Huggins v. Moore, 253 AD2d 297 (1st Dep't 1999).
Moreover, where, as here, the letter was not sent to "a number of people" (Buckley v. Littell, supra at 897), but rather constituted a "'communication made by one person to another upon a subject in which both have an interest'", said letter is subject to a conditional, or qualified, privilege. Liberman v. Gelstein, 80 NY2d 429, 437 (1992). See also, Loughry v. Lincoln First Bank, 67 NY2d 369 (1986); Priovolos v. St. Barnabas Hospital, 1 AD3d 126 (1st Dep't 2003).
Such a privilege can be dissolved upon a showing that defendant spoke with either constitutional malice (see, New York Times Co. v. Sullivan, 376 U.S. 254 [1964]), or common law malice (see, Stukuls v. State of New York, 42 NY2d 272 [1977]). In other words, in order to overcome the qualified privilege, plaintiff must demonstrate that the "statements [were] made with [a] high degree of awareness of their probable falsity" (Garrison v. Louisiana, 379 U.S. 64, 74 [1964]) and/or that "malice was the one and only cause for the publication" (Stukuls v. State of New [*3]York, supra at 282).
In the instant case, plaintiff has failed to submit "'sufficient evidence to permit the conclusion that [McManus] in fact entertained serious doubts as to the truth of [the] publication' (citation omitted)" (Liberman v. Gelstein, supra at 438) or that he was motivated solely by "spite or ill will" (supra at 439).
Plaintiff contends that McManus had a particular animus against him since he was hired over the objections of McManus. McManus concedes that he was not a "fan" of Zion's writing style.
However, the Court of Appeals has held that "spite or ill will refers not to defendant's general feelings about plaintiff, but to the speaker's motivation for making the defamatory statements (citations omitted). If the defendant's statements were made to further the interest protected by the privilege, it matters not that defendant also despised plaintiff." Liberman v. Gelstein, supra at 439.
Accordingly, based on the papers submitted and the oral argument held on the record on June 16, 2004, this Court finds that plaintiff has failed to raise a triable issue of fact with respect to his claim for defamation. Defendants' motion is, therefore, granted and plaintiff's second cause of action is dismissed with prejudice.
Plaintiff's first cause of action for breach of contract is severed and continued.
A pre-trial conference shall be held in IA Part 12, 60 Centre Street, Room 341 on January 19, 2005 at 10:00 a.m.
This constitutes the decision and order of this Court.
Dated: December 17, 2004
BARBARA R. KAPNICK
J.S.C.
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