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42 USC 1983 ACTIONS AGAINST INDIVIDUAL POLICE OFFICERS DO NOT RELATE BACK TO THE ACTION AGAINST THE CITY, MOTION TO AMEND THE COMPLAINT BY ADDING NAMED OFFICERS PROPERLY DENIED.

The First Department determined plaintiffs motion to amend the complaint by adding named police officers (previously listed in the complaint as John or Jane Doe) as defendants was properly denied. The statute of limitations for civil rights violation under 18 USC 1983 had passed. The plaintiffs unsuccessfully argued the relation-back doctrine applied because there was a unity of interest between the city defendant and the named police officers:

Plaintiffs argue that Officers Crocitto and Palmerini are united in interest with the City of New York, one of the original defendants, because the officers are employees of the City. It is undisputed, however, that the City cannot be held vicariously liable for its employees’ violations of 42 USC § 1983. Rather, the City can be held liable under 42 USC § 1983 only for violating that statute through an unconstitutional official policy or custom … . Thus, it simply cannot be said that the fortunes in this action of the City and of either Officer Crocitto or Officer Palmerini “stand or fall together and that judgment against one will similarly affect the other” … . Because the City has no vicarious liability for Officers Crocitto’s and Palmerini’s alleged misconduct under 42 USC § 1983, the two officers are not united in interest with the City with respect to the federal false arrest and excessive force claims against them, and the interposition of those claims against the officers does not relate back to the commencement of the action against the City for purposes of the statute of limitations. Higgins v City of New York, 2016 NY Slip Op 07748, 1st Dept 11-17-16

CIVIL PROCEDURE (1983 ACTIONS AGAINST INDIVIDUAL POLICE OFFICERS DO NOT RELATE BACK TO THE ACTION AGAINST THE CITY, MOTION TO AMEND THE COMPLAINT BY ADDING NAMED OFFICERS PROPERLY DENIED)/CIVIL RIGHTS (18 USC 1983) (1983 ACTIONS AGAINST INDIVIDUAL POLICE OFFICERS DO NOT RELATE BACK TO THE ACTION AGAINST THE CITY, MOTION TO AMEND THE COMPLAINT BY ADDING NAMED OFFICERS PROPERLY DENIED)/MUNICIPAL LAW (1983 ACTIONS AGAINST INDIVIDUAL POLICE OFFICERS DO NOT RELATE BACK TO THE ACTION AGAINST THE CITY, MOTION TO AMEND THE COMPLAINT BY ADDING NAMED OFFICERS PROPERLY DENIED)/POLICE OFFICERS (1983 ACTIONS AGAINST INDIVIDUAL POLICE OFFICERS DO NOT RELATE BACK TO THE ACTION AGAINST THE CITY, MOTION TO AMEND THE COMPLAINT BY ADDING NAMED OFFICERS PROPERLY DENIED)

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JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL.

The First Department, reversing Supreme Court, determined a reporter (Robles) who interviewed defendant could not be compelled to testify at the defendant’s murder trial and could not be compelled to turn over her interview notes. The information gathered by the reporter was not “critical or necessary” to the People’s case:

In People v Bonie (141 AD3d 401 [1st Dept 2016], lv dismissed 28 NY3d 956 [2016]), a murder case based on circumstantial evidence, we found that the outtakes of an interview of the defendant taken at a detention center in which he discussed, inter alia, the charges against him and his relationship with the victim were ” critical or necessary’ to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict[ed] defendant’s earlier statements to police” … . In contrast, in this case, the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case. Under the circumstances, and in keeping with “the consistent tradition in this State of providing the broadest possible protection to the sensitive role of gathering and disseminating news of public events'” … , we find that the People have not made a “clear and specific showing” that the disclosure sought from Robles (her testimony and interview notes) is “critical or necessary” to the People’s proof of a material issue so as to overcome the qualified protection for the journalist’s nonconfidential material (Civil Rights Law § 79-h[c]). People v Juarez, 2016 NY Slip Op 06900, 1st Dept 10-20-16

CRIMINAL LAW (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/EVIDENCE (CRIMINAL LAW, JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/CIVIL RIGHTS LAW (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/JOURNALISTS (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)

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IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED.

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Acosta, over a two-justice dissent, determined the First Department’s prior ruling that a search warrant was invalid was the law of the case. The trial court had ruled new evidence demonstrated the validity of the warrant and granted a directed verdict in favor of the defendants (the city and police officers who procured and executed the search warrant). The plaintiffs, who had been pushed to the floor at gunpoint, handcuffed, and held for three hours while their apartment was searched (and trashed), sued alleging the violation of their civil rights:

This case gives us the opportunity to emphasize that when an issue is specifically decided on a motion for summary judgment, that determination is the law of the case. As such, the trial court, as well as the parties, are bound by it “absent a showing of subsequent evidence or change of law” … . Applying this rule to the case at hand, we specifically found in Delgado v City of New York (86 AD3d 502, 508 [1st Dept 2011] [Delgado I]), that the no-knock search warrant at issue was not valid. Thus, the trial court was bound by that determination absent the introduction of subsequent evidence to show otherwise. The evidence that was introduced at trial on the validity of the warrant, however, was not significantly different from what was previously before the court on the motion for summary judgment. Accordingly, the trial court erred in deeming the warrant valid and granting defendants’ motion for a directed verdict in their favor. * * *

Whether this Court’s conclusion regarding the validity of the search warrant in Delgado I was erroneously reached is irrelevant. The law of the case precluded the trial court from re-examining the issue (see Carmona, 92 AD3d at 492-493), and it was therefore bound by our conclusion regardless of its views on our analysis … .

At the very least, the issue as to the validity of the search warrant should have gone before the jury since the additional evidence adduced at trial did not significantly alter our analysis. Instead, acting essentially as an appellate court, the trial court effectively reversed this Court’s finding on the validity of the warrant. Delgado v City of New York, 2016 NY Slip Op 06185, 1st Dept 9-27-16

 

CIVIL PROCEDURE (IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/CIVIL RIGHTS LAW (PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/CRIMINAL LAW ((IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/LAW OF THE CASE (IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)

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COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT.

The Second Department, reversing Supreme Court, determined plaintiff stated causes of action for sexual harassment and retaliatory firing. The Second Department noted that Supreme Court erred by relying on defenses to action, which are relevant only to a summary judgment motion, not a motion to dismiss. The Second Department further explained how a motion to dismiss is to be handled when (as here) documentary evidence is submitted in opposition:

The court erred in determining that the subject cause of action must be dismissed because the plaintiff failed to show that the behavior of her supervisor constituted more than a petty slight or trivial inconvenience. The plaintiff does not have this burden. Rather, a contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense … , which should be raised in the defendants’ answer, and does not lend itself to a pre-answer motion to dismiss … . A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party’s cause of action. “Therefore, whether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss” … . * * *

“When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” .. .

Kaplan v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063, 2nd Dept 9-21-16

 

EMPLOYMENT LAW (SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/CIVIL RIGHTS LAW (EMPLOYMENT LAW, SEXUAL HARASSMENT, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/SEXUAL HARASSMENT (EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/RETALIATION (EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/SEXUAL HARASSMENT EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/CIVIL PROCEDURE (MOTION TO DISMISS, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/DISMISS, MOTION TO (CIVIL, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)SUMMARY JUDGMENT (COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)

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NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE.

The Second Department determined the media-defendant (WPIX) in a defamation action was entitled to absolute immunity under the Civil Rights Law. The action stemmed from news reports which included the plaintiff’s photograph and stated the police were looking for the plaintiff in connection with an attempted rape. The final report stated that another had been arrested but plaintiff’s photograph was included in that report as well:

… [T]he Supreme Court properly determined that the plaintiff’s allegation that the subject news reports were published without privilege was not a fact at all, because WPIX’s evidentiary submissions established that the news reports were absolutely privileged pursuant to Civil Rights Law § 74. That statute provides, in pertinent part, that “[a] civil action cannot be maintained . . . for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding” (Civil Rights Law § 74). Contrary to the plaintiff’s contention, the police investigation of the attempted rape constituted an “official proceeding” under the statute … . Further, the subject news reports were substantially accurate reports of the information provided by the NYPD in its press releases … .

The privilege is not defeated by the NYPD’s error in identifying the plaintiff by his photograph as the assailant. The statute “was designed precisely to protect the publisher of a fair and true report from liability for just such an error and to relieve it of any duty to expose the error through its own investigation” … . Rodriguez v Daily News, L.P., 2016 NY Slip Op 06071, 2nd Dept 9-21-16

 

DEFAMATION (NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE)/PRIVILEGE (DEFAMATIION, NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE)/CIVIL RIGHTS LAW(NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE) 

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PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED.

In an action against a detective and emergency medical technicians (EMT’s) alleging negligence during an emergency response, the Second Department determined a portion of the detective’s “internal affairs” file was discoverable as “material and necessary” and the deposition of two additional EMT’s should have been allowed because sufficient information about the response to the accident had not been provided by the EMT’s who had been deposed:

Contrary to the Supreme Court’s determination, we find that two of the Internal Affairs records must be disclosed because they are relevant and material: (1) a recording or recordings of emergency dispatch calls referred to as “Seventh Precinct Band (Disc #1)” and (2) a “Fire, Rescue, and Emergency Services (FRES)” recording. Accordingly, the court should have granted that branch of the plaintiffs’ motion which was to compel the disclosure of those two records (see Civil Rights Law § 50-a…). * * *

Supreme Court should have granted that branch of the plaintiffs’ motion which was to compel the depositions of the EMTs or EMT aides who were present at the accident scene. In the first instance, a municipality has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition … . Similarly, “[a] corporate entity has the right to designate, in the first instance, the employee who shall be examined” … . In order to demonstrate that additional depositions are necessary, the movant must show “(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case” … .

Here, only two EMTs who responded to the accident scene have been deposed thus far, and one of those EMTs is the … officer who allegedly failed to provide necessary first aid to the decedent. The testimony of these two emergency responders did not provide sufficient information regarding the actions taken by the various EMTs and ambulance workers who responded to the accident, and it is likely that other on-scene EMTs may possess relevant and material information. Under these circumstances, the plaintiffs are entitled to depose the other members of the ambulance company who were present at the accident scene … . Cea v Zimmerman, 2016 NY Slip Op 05968, 2nd Dept 9-14-16

 

MUNICIPAL LAW (PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)/CIVIL RIGHTS LAW (POLICE OFFICERS, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE)/POLICE OFFICERS (POLICE OFFICERS, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE)/CIVIL PROCEDURE (NEGLIGENCE, DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)/NEGLIGENCE (NEGLIGENCE, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)

ALLEGED DEPICTIONS OF PLAINTIFFS IN A VIDEO GAME NOT PROHIBITED BY THE CIVIL RIGHTS LAW.

The Second Department determined the Civil Rights Law did not apply to a video game which was alleged to have been based upon depictions of the plaintiffs Karen Gravano and Lindsay Lohan. The statute prohibits the unauthorized of one’s name, portrait or picture in advertising or trade:

Both Gravano’s and Lohan’s respective causes of action under Civil Rights Law § 51 “must fail because defendants did not use [plaintiffs’] name, portrait, or picture'” … . Despite Gravano’s contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her … . As to Lohan’s claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan … .

Even if we accept plaintiffs’ contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs’ claims should be dismissed because this video game does not fall under the statutory definitions of “advertising” or “trade” … . Gravano v Take-Two Interactive Software, Inc., 2016 NY Slip Op 05942, 1st Dept 9-1-16

CIVIL RIGHTS LAW (ALLEGED DEPICTIONS OF PLAINTIFFS IN A VIDEO GAME NOT PROHIBITED BY THE CIVIL RIGHTS LAW)/VIDEO GAMES (CIVIL RIGHTS LAW, ALLEGED DEPICTIONS OF PLAINTIFFS IN A VIDEO GAME NOT PROHIBITED BY THE CIVIL RIGHTS LAW)

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PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION.

The First Department determined a reporter’s videotaped interview with the defendant in this murder case must be turned over to the prosecution. Although the substance of some of defendant’s statements to the reporter was summarized in the portion of the interview which was aired on the news, relevant statements made by the defendant were not aired. The First Department determined the relevant unaired portions of the interview were not protected by qualified privilege under the Shield Law (Civil Rights Law 79-h):

Here, the outtakes of an interview of defendant taken at a detention center in which he discusses, inter alia, the charges against him and his relationship with the victim, are on their face “highly material and relevant” (Civil Rights Law § 79-h[c]). In a circumstantial murder case, evidence which, standing alone, might appear innocuous can be deemed critical when viewed in combination with other circumstantial evidence … . Here, the reporter described on air statements made by defendant in unaired portions of the interview to the effect that Ms. Moore was a good tenant and a good person who always paid her rent on time and was friendly with fellow neighbors. While these statements out of context might seem benign, the People argue persuasively that they are “critical or necessary” to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict defendant’s earlier statements to police … . Although the People have access to the substance of what defendant said from [the reporter’s] paraphrase on the News 12 broadcast, defendant’s actual words and his demeanor as he said them are available only on the unpublished video of the interview in News 12’s possession. ,,, [W]e find that the People have made the “clear and specific showing” required to overcome News 12’s qualified privilege as to nonconfidential journalistic material under article I, section 8 of New York’s Constitution and the Shield Law only as to those portions of the unaired News 12 footage of its interview with defendant in which defendant makes any statement concerning killing Ms. Moore, and discusses their relationship and his impressions and observations of her, including her conduct as a tenant … . People v Bonie, 2016 NY Slip Op 05331, 1st Dept 7-5-16

CIVIL RIGHTS LAW (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CONSTITUTIONAL LAW (REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CRIMINAL LAW (CIVIL RIGHTS LAW, REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/REPORTERS (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/PRIVILEGE (REPORTERS, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)

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DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO BOTH QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY.

The Second Department determined defendants' motion to set aside the plaintiff's verdict, in a case alleging use of excessive force by police officers, should have been granted. Plaintiff, who was mentally ill, punched a police officer who approached him and ran up some stairs. When the police attempted to restrain him, he and the officers fell down the stairs. The Second Department held the facts did not support a finding of excessive force. The court further held the officers did not clearly violate plaintiff's statutory or constitutional rights and were therefore entitled to qualified immunity. In addition, the Second Department found the officers were performing a discretionary, not ministerial function, and were therefore entitled to government function immunity, requiring dismissal of the negligence cause of action. On the topic of qualified immunity, the Second Department wrote:

“The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” … . While the doctrine does not require “a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate” … . The dispositive question is whether the violative nature of particular conduct is clearly established … . “This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition” … . “Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts” … . “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments' by protect[ing] all but the plainly incompetent or those who knowingly violate the law'” … . Davila v City of New York, 2016 NY Slip Op 03846, 2nd Dept 5-18-16

MUNICIPAL LAW (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/CIVIL RIGHTS (POLICE, EXCESSIVE FORCE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/QUALIFIED IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/GOVERNMENT FUNCTION IMMUNITY (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)/NEGLIGENCE (POLICE, DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; POLICE DID NOT USE EXCESSIVE FORCE AND WERE ENTITLED TO QUALIFIED AND GOVERNMENT FUNCTION IMMUNITY)

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MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE.

The Third Department determined plaintiff’s libel complaint was properly dismissed. The defendant newspaper published an article about plaintiff’s conviction in a mortgage fraud prosecution which was based upon a press release from the Department of Justice (DOJ). Civil Rights Law 74 prohibits a civil action against the publisher of a fair and true report of a judicial proceeding. The Third Department explained that minor inaccuracies will not prevent the characterization of an article as fair and true:

 

Civil Rights Law § 74 provides, in relevant part, that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding” and, as such, “cloaks those publishing fair and true reports of judicial proceedings with immunity from civil liability” … . “[A]n article may be characterized as ‘fair and true’ if it is substantially accurate” … . Moreover, “[a] fair and true report admits of some liberality; the exact words of every proceeding need not be given if the substance be substantially stated” … and “there is ‘no requirement that a publication report the plaintiff’s side of the controversy'” … . Minor inaccuracies are “‘not serious enough to remove [a party’s] reportage from the protection of Civil Rights Law § 74′” … .

In light of the foregoing standard, we agree with Supreme Court that defendants’ published statements were a fair and true representation of the DOJ press release, thus falling within the statutory privilege afforded by Civil Rights Law § 74. Although defendants used language that differed slightly from the DOJ press release in their article, given plaintiff’s criminal charges and convictions detailed in the press release, the language used “does not suggest more serious conduct than that actually suggested in the official proceeding” … . A liberal reading of defendants’ statements in the context of the article demonstrates that the statements are substantially accurate and, thus, a fair and true report of the DOJ press release … . Bouchard v Daily Gazette Co., 2016 NY Slip Op 01364, 3rd Dept 2-25-16

 

DEFAMATION (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/LIBEL (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/CIVIL RIGHTS LAW  (LIBEL, MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)

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