Gaeta v. New York News, Inc.

Kupferman, J. P.

(dissenting). While in the law of defamation, the decisions “are not entirely consistent”1 and may indeed be inconsistent,2 certain principles are at least currently well established and can be applied to the matter at hand.

The plaintiff complains of the lead paragraph in a news story, one of a series that appeared in the New York Daily News on abuses of patients who had been discharged from mental hospitals into nursing homes:

“When he was 41, George Nies, a Queens construction worker, suffered a nervous breakdown that psychiatrists said was precipitated by a messy divorce and the fact that his son killed himself because his mother dated other men.

“George was institutionalized, first in a Veteran’s Administration hospital and then in Creedmoor State Hospital for the mentally ill in Queens Village. After two years there, he appeared to be making progress.

“Then, without his family’s knowledge, state mental health officials discharged him and sent him to the Elmhurst Manor Home for Adults, 100-30 Ditmars Boulevard, Flushing. Approximately half the residents of Elmhurst Manor are sane elderly men and women, the rest are discharged mental patients like George Nies.”

Plaintiff, now remarried, was at one time the wife of the George Nies referred to in the article.

Plaintiff alleges numerous factual inaccuracies in the challenged paragraph, but her most significant objections are to the statements that she dated other men and that her son killed himself because of that alleged fact, and that *330the son’s suicide, as well as her alleged dating, precipitated the husband’s breakdown. Plaintiff emphatically states in her complaint and affidavit that she did not date other men. Moreover, she states that her son did not kill himself but that he died of complications from a drug overdose some 5 years after her divorce and some 10 years after the onset of her former husband’s mental problems, which she says resulted from chronic alcoholism.

The complaint names as defendants Marcia Kramer, the reporter who researched and wrote the story, New York News, Inc., which publishes the Daily News, as well as two individual officers of New York News, Inc., who serve, respectively, as publisher and editor. The complaint seeks both compensatory and punitive damages for injuries allegedly suffered to plaintiff’s good name and reputation, socially and in connection with her employment.

In the order appealed from, Special Term (Shirley Fingerhood, J.), granted defendants’ motion for summary judgment only with respect to the individual officers of New York News, Inc., on the authority of Karaduman v Newsday, Inc. (51 NY2d 531) and denied the motion in all other respects (115 Misc 2d 483). We are all agreed that Special Term correctly dismissed the complaint as against the editor and publisher. Nothing in the record suggests that either the editor or publisher had or should have had reasons to doubt the accuracy of the story. (See James v Gannett Co., 40 NY2d 415, 424.)

However, because of a prior order entered on a motion to strike certain affirmative defenses at Special Term (Hyman Korn, J.), which held, inter alla, that the gross irresponsibility standard3 of Chapadeau v Utica Observer-Dispatch (38 NY2d 196) was not applicable because the item in issue “was hot an essential part of the news story”, the Justice at Special Term considered herself bound by “the law of this case” (115 Misc 2d 483, 485, supra).

The principle of “law of the case” applies only between courts of co-ordinate jurisdiction and therefore is not bind*331ing on an appellate court. (See Rager v McCloskey, 305 NY 75, 78; Clark v New York Tel. Co., 52 AD2d 1030.) Accordingly, we should consider the correctness of that prior order.

There was substantial research for the series which ran on five days in July, 1977. The item on George Nies came from information obtained from his sister4 after the reporter was given Nies’ name by the office of the special nursing homes prosecutor as a subject to exemplify the nursing home problems.

The reference to psychiatrists came from the sister, and when the reporter sought corroboration, doctors at Creed-moor State invoked the doctor-patient privilege.

It is contended that the reporter should have pursued an in depth verification study before the reference to plaintiff, but it was not the focus of the series. Opinions may differ about how much investigation should bottom any story, but the minimum standard would have been reached. Certainly, as to punitive damages, there was no malice or knowledge of falsity or reckless disregard of the truth. (Gertz v Robert Welch, Inc., 418 US 323; cf. Le Mistral v Columbia Broadcasting System, 61 AD2d 491, 495.)

In order for the content of an article to come within the qualified privilege described in Chapadeau, it need only be “reasonably related to matters warranting public exposition”. (See Chapadeau v Utica Observer-Dispatch, 38 NY2d, at p 199; cf. Delan v CBS, Inc., 91 AD2d 255 [an action under Civil Rights Law, §§ 50, 51 for unauthorized use of plaintiff’s photograph, the court required only a “legitimate connection”5 between the use of plaintiff’s name and picture and the matter of public interest sought to be portrayed].)

In the present case, the published matter involving plaintiff bears a reasonable relation to the subject of public interest. The journalistic technique of focusing on an individual case to exemplify and expose problems that are *332typical throughout the subject matter is a common practice frequently used to attract the reader’s attention and make an otherwise dry story interesting. There can be no dispute that the subject matter of the series of articles is within the sphere of legitimate public concern. (Cottom v Meredith Corp., 65 AD2d 165.)

Accordingly, the order of the Supreme Court, New York County (Shirley Fingerhood, J.), entered on September 16, 1982, should be modified to grant defendants’ motion for summary judgment dismissing the complaint in its entirety.

Carro and Fein, JJ., concur with Kassal, J.; Kupferman, J. P., and Silverman, J., dissent in an opinion by Kupferman, J. P.

Order, Supreme Court, New York County, entered on September 16, 1982, affirmed, without costs and without disbursements.

. Compare Silsdorf v Levine, 59 NY2d 8 with Velella v Benedetto, 57 NY2d 788, affg on opn of Sandler, J., 83 AD2d 465.

. See Hale, The Future of Strict Liability in Libel, 5 [No. 2] Communications & Law 23, 35.

“A few states selected the constitutional malice standard of liability. New York adopted the gross irresponsibility standard enunciated by Justice Harlan in Curtis Publishing Co. v Butts.” (Metcalf, Rights and Liabilities of Publishers, Broadcasters and Reporters, § 1.17 [“Fault”].)

. Consider Dickerson, Fashioning a New Libel Defense: The Advent of Neutral Reportage, 3 Communications & Law 77, 79 [Summer, 1981].

. It is not even necessary in a news story that the photograph have any connection insofar as the newspaper is concerned. (Arrington v New York Times Co., 55 NY2d 433, cert den _ US _, 103 S Ct 787.)