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Geraci v. Probst

October 14, 2010

RONALD GERACI, RESPONDENT,
v.
THOMAS PROBST, & C., ET AL., APPELLANTS.



The opinion of the court was delivered by: Lippman, Chief Judge.

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

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.

Plaintiff Geraci and defendant Probst*fn1 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 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. The 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 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.*fn2

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 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 consistent for more than one hundred years.*fn3 "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 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 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 ยง 576 [c] ["The publication of a libel or slander is a legal cause of ...


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