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Kipper v. NYP Holdings Co.

April 30, 2009

DAVID A. KIPPER, M.D., APPELLANT, ET AL., PLAINTIFF,
v.
NYP HOLDINGS CO., INC., & C., RESPONDENT.



The opinion of the court was delivered by: Ciparick, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

In this appeal, we must determine whether the summary judgment record contains clear and convincing evidence that defendant published a false and defamatory statement concerning the revocation of plaintiff's medical license with "actual malice," as defined in New York Times Co. v Sullivan (376 US 254 [1964]). Because it does not, we affirm the Appellate Division's grant of summary judgment to defendant.

I.

On December 7, 2003, page 24 of the New York Post's Sunday edition carried a short, eight-paragraph, "rewrite" of a 98-paragraph article taken from the Los Angeles Times's wire service. The Times article, entitled "Harsh Reality of 'Osbournes' No Laughing Matter," described the rock-singer John "Ozzy" Osbourne's allegations that his former physician, plaintiff David A. Kipper, had overprescribed various medications to him during the time that Osbourne starred in a television reality series*fn1. In addition, the Times article accurately stated that the California Medical Board had "moved to revoke" plaintiff's license due to his alleged gross negligence in the treatment of other patients. But the Post article, which appeared under the inaccurate headline "Ozzy's Rx doc's license pulled," contained an error. Despite clearly indicating that it was based upon "Los Angeles Times reports," the sixth paragraph of the Post rewrite incorrectly stated that "the state medical board revoked Kipper's license."

The circumstances surrounding the Post's erroneous statement are not entirely clear. The record reveals that, sometime during the evening of December 6, a Post editor assigned the task of rewriting the wire service story to a then-part-time reporter, Lyle Hasani Gittens. According to Gittens, the Post re-write was slated to appear in the second edition of the paper, the usual deadline for which was "around 8:00 to 9:00 o'clock." Gittens swore in an affidavit and testified at his deposition that he did not recall writing and did not think he wrote that plaintiff's license was revoked, a statement that defendant concedes was both false and defamatory. He speculated that the error might have occurred during the editing process.

After Gittens prepared the re-write on a personal computer, he transmitted it to an electronic "basket" where it was reviewed by an editor. Gittens was aware that editors sometimes altered the text of articles and, as typical of such editing, he cited stylistic changes to an article's lead, or first, paragraph. But he denied having any knowledge that Post editors deliberately changed the facts of stories.

The record sheds no light on the actual editing of Gittens's rewrite. The editor responsible for it, Todd Venezia testified that he would "never deliberately" falsify information pertaining to a doctor's licensure, but he could not offer any specific details pertaining to his review of the December 7 re-write. Moreover, the record does not contain the original draft that Gittens submitted to Venezia.*fn2

An affidavit submitted by the Post's Metropolitan Editor, Jesse Angelo, does, however, set forth the path that a rewrite generally travels after editorial review. At that point, it is sent to the copy desk for additional checking of grammar, punctuation and accuracy as well as any reduction in text necessary to fit the paper's layout requirements. The copy desk is also responsible for preparing headlines before the article is processed by the production department for page-setting and transmission to the printer. How these steps were accomplished prior to publication of the "Ozzy" rewrite is not revealed by the record.

Apparently, the sole source material for Gittens's rewrite was the Los Angeles Times wire service story. Gittens testified that he "did not recall" making any independent effort to verify the status of plaintiff's license prior to publication of the Post article. Additionally, Gittens remarked that Post editors would "[n]ot necessarily" engage in additional fact-checking after an article's submission unless "something very conspicuous... leap[t] out at them." Accepting the substance of a wire service story was not unusual, according to Angelo. He averred that the Post occasionally reprints stories disseminated on reputable wire services, such as that of the Los Angeles Times, verbatim and that additional research regarding the factual accuracy of such stories is not generally undertaken. With respect to the Los Angeles Times wire service dispatch relevant here, Angelo stated that "this is not the kind of story that [the Post] would have expected a reporter to do additional research [on]."

Nonetheless, Angelo explained that a reporter performing a rewrite may make "minor editorial changes," including "more interesting word selection," before publication in the Post. During his deposition, Gittens provided additional details about the rewriting process, stating that it essentially entailed shortening the length of a wire service dispatch and changing its "lead" paragraph "to make it more Post-like," by which he meant "less boring than the Los Angeles Times" or "[a] better read." The lead paragraph in the rewrite of which plaintiff complains, however, correctly stated that plaintiff was "under investigation for over-prescribing drugs."

On January 30, 2004 nearly two months after it was published counsel for plaintiff wrote to the Post asserting that the December 7 re-write was false and defamatory and "published with reckless disregard for the truth." The letter demanded a retraction within 14 days. The Post complied, publishing a "Correction," on page 26 of its February 9 edition, which stated that the state medical board had "moved to revoke [plaintiff's] license, although no action has as yet been taken." Plaintiff then commenced this libel suit on November 23, 2004, almost a year after the Post rewrite was first published and more than nine months after publication of the requested retraction.

Following discovery, defendant moved for summary judgment. As relevant here, Supreme Court denied the motion, reasoning that defendant bore the burden of demonstrating that its misstatement regarding the status of plaintiff's license was not published with actual malice as defined by New York Times i.e., with knowledge of falsity or a reckless disregard for the truth*fn3. A unanimous Appellate Division reversed, granting defendant summary judgment and dismissing the complaint (see 47 AD3d 597, 598 [1st Dept 2008]). We granted leave to appeal and now affirm.

II.

As set forth in New York Times Co. v Sullivan (376 US 254 [1964]) and its progeny, the U.S. Constitution's First Amendment bars a public figure from recovering damages in a libel action unless clear and convincing evidence proves that a false and defamatory statement was published with "'actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not" (id. at 279-280, 285-286; Masson v New Yorker Magazine, Inc., 501 US 496, 511 [1991]; Harte-Hanks Communications, Inc. v Connaughton, 491 US 657, 666-667 [1989]; Bose Corp. v Consumers Union of U.S., Inc., 466 US 485, 511 [1984]). The clear and convincing evidence standard is applicable to a trial court's assessment of a libel defendant's motion for summary judgment (see Anderson v Liberty Lobby, Inc., 477 US 242, 252 [1986]; see also Freeman v Johnston, 84 NY2d 52, 57 [1994]). In such a posture, the ...


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