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David M. Gordon, Plaintiff-Appellant-Respondent v. Lin Tv Corporation and Al Vaughters

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 10, 2011

DAVID M. GORDON, PLAINTIFF-APPELLANT-RESPONDENT,
v.
LIN TV CORPORATION AND AL VAUGHTERS, DEFENDANTS-RESPONDENTS-APPELLANTS.

Appeal and cross appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered November 23, 2010 in a defamation action.

Gordon v Lin Tv Corp.

Decided on November 10, 2011

Appellate Division, Fourth Department

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.

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.

The order granted the motion of defendants for summary judgment and dismissed the complaint.

It is hereby ORDERED that said cross appeal is unanimously dismissed and the order is affirmed without costs.

Memorandum: Plaintiff appeals and defendants cross-appeal from an order granting defendants' motion for summary judgment dismissing the complaint in this defamation action. We conclude at the outset that defendants are not aggrieved by the order dismissing the complaint and thus their cross appeal must be dismissed (see Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488). According to plaintiff, defendant Al Vaughters misidentified plaintiff as the president of a bankrupt investment fund during an evening news television broadcast on a station owned and operated by defendant Lin TV Corporation. We conclude that defendants met their burden of establishing their entitlement to judgment as a matter of law inasmuch as they did not act "in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties" (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199). As the Court of Appeals noted in Chapadeau, a limited number of errors in news reporting is inevitable (see id. at 200), and the fact that defendants corrected the mistake within the same broadcast demonstrates that they strived for accuracy (see Alicea v Ogden Newspapers, 115 AD2d 233, affd 67 NY2d 862). Because we conclude that defendants met their burden of demonstrating that they did not act in a grossly irresponsible manner, we do not address defendants' alternative ground for affirmance, i.e., that plaintiff was a limited purpose public figure and thus that the court should have applied the higher standard of demonstrating actual malice (see generally New York Times Co. v Sullivan, 376 US 254, 279-280).

Entered: November 10, 2011

Patricia L. Morgan Clerk of the Court

20111110

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