SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
April 25, 1968
THOMAS R. GILLIGAN, RESPONDENT,
MARTIN L. KING, JR., ET AL., DEFENDANTS, AND WILLIAM EPTON, APPELLANT
Concur -- Botein, P. J., Eager, Capozzoli and McGivern, JJ; Stevens, J., concurs.
Order entered October 27, 1965, denying motion of defendant-appellant William Epton to dismiss the complaint, sounding in libel, unanimously affirmed, without costs or disbursements, with leave to renew the motion, if defendant-appellant is so advised, after joinder of issue and the 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., concurs in the following memorandum:
I concur. The motion here is pursuant to CPLR 3211 (subd. [a], par. 7) only. Since the basis of plaintiff's action lies in a claimed injury to his character in the opinion of others, pretrial disclosure proceedings might well involve examination of plaintiff as to whether and under what circumstances plaintiff has ever been involved in other homicides, and what, if any, public reaction was manifested in connection therewith. [48 Misc. 2d 212.]
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