Grobe v. Three Village Herald

OPINION OF THE COURT Per Curiam. Plaintiff seeks to recover damages for libel. He appeals from an order which granted defendants’ motion for summary judgment. The order should be affirmed. Following a collision between plaintiff and a 13-year-old boy, while the boy was riding a bicycle in the shopping mall of which plaintiff was a major shareholder, plaintiff allegedly struck the child "about the face and his side with his hands”. The boy was the son of a New York City policeman, Officer Scibelli. After the latter caused plaintiff’s arrest on a charge of harassment (see Penal Law, § 240.25), plaintiff threatened to sue him for one million dollars damages. Plaintiff was subsequently granted an adjournment in contemplation of dismissal (ACOD) (see CPL 170.55). Defendant The Three Village Herald published an article reporting the ACOD as a "guilty plea”. This libel action ensued. We are in accord with Special Term’s conclusion that plaintiff is a private individual (see Gertz v Robert Welch, Inc., 418 US 323; Hutchinson v Proxmire, 443 US — [decided June 26, 1979]; Wolston v Reader’s Digest Assn., 443 US — [decided June 26, 1979]). However, under the facts at bar, plaintiff’s conduct and the operation of the criminal justice system with respect to disposition of the charges against plaintiff being a matter of public concern, plaintiff was under an obligation to adduce evidence of "gross irresponsibility” by defendants; that plaintiff failed to do and summary judgment was properly granted, as in Chapadeau v Utica Observer-Dispatch (38 NY2d 196). At bar the defendant reporter deposed that he verified his information, inter alia, by conversing with Police Officer Scibelli, father of the boy, and by calling the court. He also telephoned plaintiff but plaintiff did not return the call. We note further that the record contains the uncontroverted averment of Officer Scibelli that: "In this conversation, I told O’Rourke that Mr. Grobe had pleaded guilty. In the language of the police department, an application for an ACOD is similar to 'copping a plea’. To me and the other officers I work with, although there is a technical distinction between an ACOD and a plea of guilty, the two are frequently used interchangeably in conversation.” An ACOD is clearly [177] not a guilty plea (see CPL 170.55, subd 1, which states that an ACOD may be granted "before entry of a plea of guilty”; see, also, CPL 160.50, subds 1, 2, which include an ACOD dismissal as an order made "[u]pon the termination of a criminal action or proceeding against a person in favor of such person”, entitling him to return of fingerprints, photographs, etc.). The police view, as expressed by Officer Scibelli, however, is not without partial judicial support (see People v Siragusa, 81 Misc 2d 368, 370 ["an A.C.O.D. as practiced in our courts is merely another category in what is commonly referred to as 'plea bargaining’ ”]; Perez v Dumpson, 88 Misc 2d 506, mod on other grounds 58 AD2d 887; Kenul v Hollander, 86 Misc 2d 466; Cardi v Supermarket Gen. Corp., 453 F Supp 633). Thus, from the viewpoint of assessing not whether the article was accurate but whether, in committing the error, defendants acted with gross irresponsibility, plaintiff’s case is found wanting.