Ortiz v. Valdescastilla

— 514 — OPINION OF THE COURT Sullivan, J. Plaintiff Alvaro Ortiz, a producer of theatrical shows for the Spanish-speaking community in the New York metropolitan area, seeks damages for an alleged libel which appeared in the entertainment column of the Sunday magazine section of El Diario-La Prensa on October 25, 1981. Named as defendants are Dimarco Valdescastilla, a freelance author who wrote the article and sold it to El Diario and under whose by-line the article appeared; Gannett El Diario Subsidiary, Inc., the corporate publisher of El Diario; and its parent, Gannett Co., Inc.1 Although not specifically mentioned, plaintiff claims that to the readers of El Diario he is unmistakeably the producer described in the following article: “The Venezuelan actress Lupita Ferrer had to be assisted in a New York hospital due to an anemic condition provoked by a problem with the producer that brought her to perform in New York. It was because said producer when the contract was over with Lupita, did not want to pay the amount due to her for her work. This was not the luck of her partner, the actor Jose Bardina, because, everyday, at the end of each show, he went to the box office to collect his day’s work. Lupita was taken to the hospital by her mother, Yolanda Ferrer. It is a pity, expressed the popular actress, that this happened to me. In the future I will not trust the producers of New York. Writing this note, Lupita has almost recuperated from the headaches she got from coming to perform in New York.” The events leading to the article’s publication are uncontradicted. The information contained in the article was gathered by Juan Caballero, an experienced free-lance photographer and author, whose specialty is Hispanic entertainment and whose photographs and articles have been published in a number of Spanish-language publications. At the time of the publication of the article Valdescastilla and Caballero, who had been recommended to Valdescastilla by the editors of a Spanish-language magazine in Puerto Rico for which Caballero had worked before becom — 515 — ing an independent free-lance journalist, enjoyed a long-term professional relationship. Valdescastilla had used Caballero as a photographer and relied upon him as a source of information since approximately 1976. Caballero’s information had always proven to be authentic and accurate and Valdescastilla regarded him as a highly reliable and trustworthy source. Valdescastilla, the author of the article, is also a freelance writer with extensive journalistic experience. He has been a professional writer for 21 years, and also specializes in Hispanic entertainment. His articles appear regularly in many Spanish-language publications and for the past 10 years he has sold articles to El Diario. Prior to this lawsuit, none of his articles had ever been subject to criticism or dispute concerning its truth or accuracy. In October, 1981, plaintiff staged a theatrical production in New York City in which Ms. Ferrer performed. Valdescastilla asked Caballero to attend the show and to take photographs of her. Valdescastilla also suggested, should the opportunity present itself, that Caballero interview Ms. Ferrer. Approximately one week later, Caballero met with Valdescastilla and turned over the photographs he had taken of Ms. Ferrer. At that time, Caballero furnished Valdescastilla with the information which later appeared in the article. In recounting the incident, Caballero reported that he had spoken to both the actress and her mother and that he had personally, at Ms. Ferrer’s request, taken her to New York Hospital since she was unfamiliar with New York City. Since Valdescastilla had no reason to doubt the truth and accuracy of the information he received from Caballero, he did not check the story any further. In fact, when Caballero reported to Valdescastilla, Ms. Ferrer had already left New York, presumably for Venezuela. Nor did Valdescastilla telephone plaintiff, whose name he knew, but whom he did not recognize as the unnamed producer involved in the incident. After speaking with Caballero, Valdescastilla wrote the article, which he then submitted to the Sunday magazine editor at El Diario. El Diario purchased the article for $25, — 516 — and then processed it in accordance with its standard editorial procedures. The article was reviewed by the editor of the Sunday magazine section, who would routinely contact free-lance authors if she had any questions. After this initial editorial review, the article was typed into the computer and sent to the composing room for page makeup. The production manager then edited the final page makeup prior to publication. After these two editorial reviews, the article was published without any change in the text which Valdescastilla had submitted. Plaintiff thereafter commenced this action without ever demanding a retraction or correction of the article. After completing discovery, he moved for partial summary judgment with respect to liability, whereupon all three defendants cross-moved for summary judgment dismissing the complaint. In support of the motion, plaintiff submitted affidavits from Ms. Ferrer and Mr. Bardina, who was also mentioned in the article, in which each denied making the statements attributed to them. On the other hand, Valdescastilla, in his affidavit, states that after the commencement of this action, he communicated with Ms. Ferrer, who confirmed the truth of what was published. Special Term denied both motions. Defendants appeal. While we agree that, as this record stands, an issue of fact exists as to whether Valdescastilla may be held liable, the El Diario publishers are entitled to summary judgment. Their reliance upon the integrity of a reputable author bars, as a matter of law, a finding of actionable fault against them under New York libel law. At the outset, we note our agreement with Special Term that, contrary to defendants’ argument, the article is susceptible of a defamatory interpretation since it “tends to disparage [plaintiff] in the way of his office, profession or trade.” (Nichols v Item Publishers, 309 NY 596, 601; see Four Star Stage Light, v Merrick, 56 AD2d 767; Book v Severino, 51 AD2d 911.) The court must, in the first instance, decide whether the words of which plaintiff complains are susceptible of the meaning ascribed to them. (Tracy v Newsday, Inc., 5 NY2d 134, 136.) If the words are reasonably susceptible of a defamatory connotation, then “it becomes the jury’s function to say whether that was the — 517 — sense in which the words were likely to be understood by the ordinary and average reader.” (Mencher v Chesley, 297 NY 94, 100.) The focus of the controversy, on this appeal, however, is not with whether the article is defamatory but rather with whether plaintiff, on defendants’ motion for summary judgment, made a factual showing sufficient to defeat their qualified privilege as journalists under the standard enunciated in Chapadeau v Utica Observer-Dispatch (38 NY2d 196). While defamation was a tort of strict liability at common law (see Herbert v Lando, 441 US 153), the law is now well settled that some degree of fault is required before liability may be imposed upon a newspaper or broadcaster for the publication of a defamatory falsehood. (Gertz v Robert Welch, Inc., 418 US 323; New York Times Co. v Sullivan, 376 US 254.) When a public official or public figure sues for defamation he must prove actual malice, that is, knowing or reckless falsehood, before recovery may be had. (New York Times Co. v Sullivan, supra, p 280; Curtis Pub. Co. v Butts, 388 US 130.) In the case of a private figure, however, a different standard applies. The Supreme Court has held that, “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” (Gertz v Robert Welch, Inc., supra, p 347.) In Chapadeau (supra, p 199), the Court of Appeals set the New York standard, stating: “[WJhere the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover; however, to warrant such recovery he must establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” It has been held that “[t]he difference between the ‘actual malice’ standard utilized in cases involving public officials and the ‘gross irresponsibility’ standard utilized in cases involving private plaintiffs is relevant only in determining the degree of fault that must be established in order to — 518 — defeat the privilege.” (Karaduman v Newsday, Inc., 51 NY2d 531, 551.) Defendants argue, citing Maule v NYM Corp. (54 NY2d 880), and Special Term found, that plaintiff, by virtue of the extensive advertising of both his name and his shows, is a public figure. Whether plaintiff is a public or private figure — and in our view the record is not sufficiently developed to determine that issue as a matter of law2 — he has failed to make an evidentiary showing sufficient to justify a trial on the fault issue against the El Diario publishers or for that matter, Valdescastilla, except that in the latter’s case summary judgment is unwarranted since his proofs are deficient. Notably absent in the record is an affidavit from Valdescastilla’s purported source, Juan Caballero, with whom Valdescastilla has been in contact during the progress of this lawsuit. That deficiency in proof, however, does not affect the El Diario publishers’ right to summary judgment. Valdescastilla, subject to Caballero’s confirmation of his account of the article’s origin, and El Diario, each in turn, relied upon a journalist of known competence and integrity. Absent specific proof that such reliance was substantially improper, the mere fact that the published information might later be proven false is insufficient to justify a trial in this case. In the case of a private person, if, as already noted, the content of the publication “is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition”, the defamed party must show gross irresponsibility. (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199, supra.) The decision of the El Diario publishers to print an entertainment column and to feature an incident involving a well-known Venezuelan actress represents a responsible editorial judgment as to what constitutes a matter of genuine public interest, reasonably related to matters warranting public exposition. As such, it is “sustainable” and ought “not to be judicially second-guessed.” (See Gaeta v New York News, 62 NY2d 340.) Thus, assuming plaintiff to be a private, and — 519 — not a public, figure, the Chapadeau “gross irresponsibility” standard applies. Under either standard — gross irresponsibility or actual malice — however, a publisher is privileged to publish information received from a dependable source of news unless he had, or should have had, substantial reasons to question the accuracy of the information or the bona fides of his source. (Karaduman v Newsday, Inc., supra, pp 550-551; see, also, Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 382-383, cert den 434 US 969.) In the absence of some other basis upon which to premise liability, such as respondeat superior, a publisher who reasonably relies on the investigative reporting of a trustworthy author cannot be deprived of the qualified privilege merely because the report is later determined to be without factual foundation. To deny the publisher his qualified privilege in such circumstances is tantamount to the unconstitutional imposition of liability without fault. Implicit in such a result would be a finding that the publisher should be held liable for the unknown culpability of an author whom the publisher believed to have acted with the utmost care. El Diario had no substantial reason to question the bona fides of Valdescastilla’s article. He had been a professional writer for 21 years; his articles regularly appeared in at least seven Spanish-language publications in addition to El Diario; he had sold articles to El Diario for 10 years; none of his earlier articles published by El Diario had been criticized or disputed; the Ferrer article fell squarely within his expertise; and he was unquestionably perceived by El Diario as a writer of integrity. Dismissal of the action against the publishers of El Diario is required for the further reason that the article was editorially reviewed before publication by both the newspaper’s Sunday magazine editor and its production manager. As in Chapadeau (supra, p 200), where the article was read by the “State desk reporter and the copy reader”, the article in this case “was not published until it had been checked by at least two persons other than the writer. This is hardly indicative of gross irresponsibility. Rather it appears that the publisher exercised reasonable methods to insure accuracy.” — 520 — The qualified privilege under the Chapadeau standard has been broadly interpreted. For example, the republication of an allegedly libelous article written by a sports editor for United Press International and disseminated by its wire service was found to be privileged, and summary judgment granted. (Zetes v Richman, 86 AD2d 746, 747.) Similarly, a publisher’s reliance solely on the statements of a police officer perceived to be dependable “failed to demonstrate the existence of a question of fact” under the Chapadeau standard, even though the information supplied by the officer turned out to be erroneous. (Robart v Post-Standard, 52 NY2d 843, 845; Carlucci v Poughkeepsie Newspapers, 88 AD2d 608, 609, affd on other grounds 57 NY2d 883.) In both Robart and Carlucci, summary judgment was granted without any evidence of the reliability of the sources involved. In neither case did the reporter know even the name of the alleged police officer with whom he had spoken, and neither reporter verified the erroneous information with a second source. In both cases, the only evidence relating to the sources was a statement to the effect that the reporters, following normal procedure, had spoken to individuals whom they believed to be police officers. Here, not only did Valdescastilla and El Diario follow their normal procedures, but the record contains additional evidence affirmatively establishing the integrity of their respective sources. Indeed, by comparison, summary judgment is more appropriate here than in Robart or Carlucci. As for Valdescastilla, the record indicates that he had a right to rely upon information given to him by Caballero, an author and photographer known to him to have an expertise in the area of Spanish-speaking entertainers and entertainment, and one whose works had been published in many Spanish and English periodicals. Caballero had originally been recommended to Valdescastilla by the editors of a magazine published in Puerto Rico, and Valdescastilla had successfully used him as a source of published news in the past. Caballero told Valdescastilla that he had met with Ms. Ferrer and her mother, and stated he had taken the actress to the hospital. His photographs of the actress confirmed that the meeting had taken place. — 521 — While plaintiff argues that Valdescastilla should have checked the accuracy of Caballero’s story, nothing in the record suggests that Caballero had any reason to submit a false report. Valdescastilla’s reliance upon an experienced writer whom he believed to be credible was reasonable. Thus, on his version of the events leading to the preparation of the article, he, too, would ordinarily be entitled to summary judgment since his conduct in the circumstances could not be considered grossly irresponsible. Since, however, Valdescastilla’s account turns on the existence of an interview of Ms. Ferrer by Caballero, as part of his burden to “lay bare and reveal his proofs” (Di Sabato v Soffes, 9 AD2d 297, 301) he should have submitted an affidavit from Caballero, with whom he is in contact, as part of his proof. No excuse has been offered justifying his failure to do so. If the issues were tendered at trial in the same posture, and Valdescastilla failed to call Caballero, plaintiff would be entitled to the benefit of an adverse inference that Caballero would not have corroborated Valdescastilla. (Perlman v Shanck, 192 App Div 179, 183.) Any shortcoming in Valdescastilla’s proofs does not, however, serve to enhance plaintiff’s case against the El Diario publishers in the absence of proof that they “acted 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 supra), if plaintiff is viewed as a private person, or that they “had or should have had serious doubt as to the truth of the publication”, if he is considered a public figure. (James v Gannett Co., 40 NY2d 415, 424.) The El Diario publishers cannot be held accountable on a theory of respondeat superior for the actions of either Caballero or Valdescastilla, since neither was their employee or agent. (See, generally, Karaduman v Newsday, Inc., 51 NY2d 531, 553, supra.) Caballero was a free-lance photographer and reporter. Valdescastilla was a free-lance writer who was paid only for articles which El Diario accepted and published. Although he held a part-time job at El Diario on Sunday evenings as a makeup editor, his duties were totally unrelated to his free-lance articles. — 522 — The dissent argues that the El Diario publishers are not entitled to summary judgment because eventually their case turns on the reliability, not of Valdescastilla or Caballero, but of Ms. Ferrer who, emotionally distraught and embittered at the time she was interviewed by Caballero, was a person of questionable trustworthiness. Even if this were so, Ms. Ferrer, as the victim of plaintiff’s alleged broken promises and a party to the incident described in the article, is a much more reliable source than a third party — no matter how trustworthy in the past — whose information is nonetheless hearsay. Moreover, the article reported that Ferrer’s emotional distress was caused by plaintiff’s refusal to honor his commitments, as Ms. Ferrer had told Caballero. Caballero had. taken Ferrer to the hospital, and thus had an opportunity to observe her demeanor and could have, not unreasonably, concluded that she was telling the truth and that her emotional state was the result of plaintiff’s mistreatment of her. Nothing in the record indicates that Caballero was grossly irresponsible in believing Ferrer, or in not attempting to confirm elsewhere a story to which, in large measure, he himself was a witness. It should be noted that, even now, plaintiff does not contend that Caballero was derelict in his journalistic responsibilities in accepting the tale of an emotionally distraught and embittered person. He simply denies that Ferrer ever told Caballero that which is attributed to her. Thus, journalistic credibility, not competence, is really the ultimate issue here. In any event, even under the less stringent standard applicable to a private person, the burden remains with plaintiff to establish gross irresponsibility, which he has failed to demonstrate in the circumstances presented. In sum, whether plaintiff be considered a public or private figure, the El Diario publishers, absent proof demonstrating, at the very least, that they acted in a grossly irresponsible manner in printing Valdescastilla’s article, are entitled to summary judgment on the basis of privilege. After completing his discovery, plaintiff has failed to come forward with such proof. Instead, he offers “[njothing but conclusory assertion”, a wholly insufficient basis upon which to impose fault. (Friends of Animals v Associated — 523 — Fur Mfrs., 46 NY2d 1065, 1068.) As the court noted in Hurley v Northwest Pubs. (273 F Supp 967, 974, affd 398 F2d 346), in granting summary judgment to the defendant where a qualified privilege obtained, “A mere chance that somehow, somewhere, on cross examination or otherwise plaintiffs will uncover something which might add to their case but obviously of which now they have no knowledge, is mere speculation and conjecture and is not sufficient in view of the showing made here by the defendant.” Courts “must not be reluctant to apply the ordinary rules governing summary judgment in libel cases such as this, since ‘[t]he threat of being put to the defense of a lawsuit * * * may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself’”. (Karaduman v Newsday, Inc., 51 NY2d 531, 545, supra, citing Washington Post Co. v Keogh, 365 F2d 965, 968, cert den 385 US 1011.) Accordingly, the order appealed from should be modified, on the law, without costs or disbursements, to grant the El Diario publishers’ cross motion for summary judgment dismissing the complaint and, except as thus modified, affirmed. Footnotes [1] The complaint against a fourth defendant, Manuel Bustelo, was dismissed in a prior order. [2] Whether the determination of a plaintiff’s status in a defamation action should be made by the court or the jury or both is an unresolved issue in this State. (See Maule v NYM Corp., supra, pp 881-882, n.)