SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
April 25, 1968
THOMAS R. GILLIGAN, RESPONDENT,
JAMES FARMER ET AL., APPELLANTS
Concur -- Botein, P. J., Eager, Capozzoli and McGivern, JJ.; Stevens, J., dissents.
Order entered November 1, 1965, denying motion to dismiss the complaint, sounding in slander, affirmed, without costs or disbursements, with leave to defendants-appellants to renew the motion, if so advised, after joinder of issue and completion of pretrial disclosure procedures. While a majority of the court are agreed that the rule announced in New York Times Co. v. Sullivan (376 U.S. 254) is applicable to this case, the present record does not lend itself to summary disposition of the issue of actual malice.
Stevens, J., dissents in the following memorandum:
I agree with the majority that New York Times Co. v. Sullivan (376 U.S. 254) is applicable. However, I would reverse and dismiss the complaint. Here, as in the companion appeal decided herewith (Gilligan v. King, 29 A.D.2d 935) the motion to dismiss is made pursuant to CPLR 3211 (subd. [a], par. 7; subd. [c] ). As in such appeal I would treat this motion as a motion for summary judgment also. Plaintiff alleges upon information and belief that the statements complained of were made by defendant Farmer. Farmer does not here make a specific denial but merely asserts he has no recollection of making such statements. However, Farmer does set forth at length the detailed investigation made by him or at his instigation, the report of the District Attorney, the content of the unidentifiable phone calls, the transmission of such information to the office of the District Attorney, defendant's attempt to check its accuracy and the refusal of the police to permit an interview with plaintiff. All of this would seem to negative any contention that the statements, even if made, were made with knowledge of their falsity or with reckless disregard of their truth. (See Schneph v. New York Post Corp., 23 A.D.2d 822, affd. 16 N.Y.2d 1011.) Plaintiff does not identify the source of his information as to the making of these statements nor does he set forth the basis for his belief. This is insufficient. In light of the public and social interests here involved, the various points of genuine controversy as to the nature of the act from which sprang the expression of opinion, and the very legitimate interest of defendant in the issues, such statements, if made, would not support the charge of slander. (Jacobowitz v. Posner, 28 A.D.2d 706, affd. 21 N.Y.2d 936.)
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