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Statement by Reporter About a Judicial Proceeding Entitled to Absolute Privilege

The Fourth Department determined a reporter’s (Velez-Mitchell;s) statements about a judicial proceeding were entitled to absolute privilege under Civil Rights Law 74.  The report concerned a lawsuit brought by a transgender woman and included reference to a DVD the woman had received from plaintiff Most Holy Family Monastery (MHFM).  The DVD was entitled “Death and the Journey to Hell.” The plaintiff contended the report falsely asserted that the Most Holy Family Monastery advocated putting homosexuals to death:

…[D]efendants are entitled to the absolute privilege set forth in Civil Rights Law § 74 … . The … statement was made in the context of the interview conducted by Velez-Mitchell, which concerned, inter alia, pending judicial proceedings commenced by the woman in California after her personal information had allegedly been misused by the DMV employee. During the interview, the woman and her attorney explained that the woman had obtained a temporary restraining order against the DMV employee based upon that employee’s misuse of her personal information, and that she had thereafter received the package from MHFM. The broadcast of the interview was twice promoted as a transgender woman “suing,” and a caption beneath the woman’s image stated, inter alia, “Transgender Woman Suing DMV.” Velez-Mitchell questioned a former prosecutor regarding the viability of an anticipated lawsuit against the DMV, and the woman’s attorney stated that “[t]he Human Rights Commission filed a complaint” concerning the incident and the “big picture is about privacy and the legal right to have [one’s] privacy protected.”

“When examining a claim of libel, we do not view statements in isolation. Instead, [t]he publication must be considered in its entirety when evaluating the defamatory effect of the words’ ” … . Here, “[r]ealistically considered,” the first statement provided background facts for the woman’s claims in pending and anticipated judicial proceedings, and the broadcast as a whole was a ” substantially accurate’ ” report of the judicial proceedings … . Consequently, the first statement is entitled to the absolute privilege set forth in Civil Rights Law § 74. Dimond v Time Warner Inc, 2014 NY Slip Op 05060, 4th Dept 7-3-14

 

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Hearsay in Medical Records Should Have Been Redacted/Not Relevant to Diagnosis and Not Clearly Attributable to Plaintiff as an Admission

Although the error was deemed harmless, the First Department determined hearsay statements should have been redacted from the plaintiff’s medical records.  The plaintiff alleged the police had pushed him over a fence, causing injury.  The defendants alleged plaintiff jumped.  The medical records included references to the plaintiff’s “jumping.” The jury found for the defendants.  The court explained how hearsay in a medical report should be handled:

Hearsay entries regarding the cause of an injury contained in a medical record come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff’s injuries … . Alternatively, the entry may be admissible as an admission, but only if there is evidence that connects the party to the entry … . The challenged entries were neither germane to treatment or diagnosis, nor were they admissions.

There was simply no evidence supporting defendants’ position that the medical doctors needed to know whether plaintiff jumped or was pushed from the fence in order for doctors to determine what medical testing he needed upon admission to the hospital. No medical expert provided such testimony … . Defendants’ only expert, a biomechanical engineer and accident reconstruction expert, opined that plaintiff’s injuries were consistent with a jump from a height and not a push to a fall. He did not give any opinion on issues relating to treatment or diagnosis. This is not a case where the conclusion is so obvious that no medical testimony is needed to lay the appropriate evidentiary foundation … .

The particular challenged entries cannot be characterized as admissions. Although the Lincoln Medical and Mental Health Center Admission Assessment form has a box checked that “patient” is the source of the information, the particular entry on that record, “he jumped off the fence,” is not clearly a direct statement attributable to or a quote of plaintiff. The Ambulance Call Report form identifies “PO” or the police officer as the source of the information that plaintiff “jumped off a fence.” No other evidence in the record identifies plaintiff as being the source of this information. Nor is there any evidence connecting plaintiff to the 1/21/97 entry in the Progress Record that “s/p fell from a fence after being chased by police officers” or the 1/23/97 entry “fall from 2 storeys [sic]” to make them admissible as admissions by him. These entries should have been redacted from the medical records received in evidence.  Benavides v City of New York 2014 NY Slip Op 01682, 1st Dept 3-18-14

 

“Concerted Action Liability” Causes of Action Dismissed/No Evidence Media Defendants Conspired with the Police to Use Excessive Force During Filmed Execution of Search Warrant

The Second Department affirmed the dismissal of causes of action against media defendants who filmed the execution of a search warrant by the police.  Plaintiff was shot during the incident.  Plaintiff alleged that the media defendants (including Yates and HBO) had conspired with the police to use excessive force to maximize the entertainment value:

A theory of “[c]oncerted action liability rests upon the principle that [a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him [or her]'” … . As stated in our prior decision in this action, the liability of HBO and Yates under a concerted action theory “cannot stem from the mere act of filming the NYPD’s use of excessive force” … . Such liability must be predicated on proof that HBO and Yates “formed a common plan with the NYPD to use excessive force in the execution of the warrant, and that such plan created an unreasonable danger to persons such as the plaintiff and was a proximate cause of her injuries” … .

Here, Yates and HBO established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by demonstrating that they did not participate, either directly or indirectly, in a common plan or design to commit the allegedly tortious act that caused the plaintiff’s injuries… . Rodriguez v City of New York, 2013 NY Slip Op 08609, 2nd Dept 12-26-13

 

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Most of Police Internal Investigation Report Deemed Immune from Disclosure

In determining that most of a police department’s internal investigation report need not be disclose pursuant to a Freedom of Information Law (FOIL) request, the Second Department wrote:

The Freedom of Information Law (Public Officers Law art. 6; hereinafter FOIL) was enacted “to promote open government and public accountability” and “imposes a broad duty on government to make its records available to the public” … . Under FOIL, government records are presumptively open for public inspection unless they fall within one of the exceptions specified by Public Officers Law § 87(2), which permits an agency to deny access, inter alia, to records which “are specifically exempted from disclosure by state or federal statute” (Public Officers Law § 87[2][a]… ). One such statute exempting records from disclosure is Civil Rights Law § 50-a(1), which provides, in relevant part, that “[a]ll personnel records used to evaluate performance toward continued employment or promotion” of police officers “shall be considered confidential and not subject to inspection or review.” However, “when access to an officer’s personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer” … . Matter of Cook v Nassau County Police Dept, 2013 NY Slip Op 06364, 2nd Dept 10-2-13

 

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Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases Allowed Colorado Court to Subpoena a Reporter for Purposes of Testifying About Her Confidential Sources in a Matter Related to the Aurora Movie-Theater Shootings

In a full-fledged opinion by Justice Clark, over a two-justice dissent in an opinion by Justice Saxe, the First Department determined a reporter could be compelled to testify, under Criminal Procedure Law section 640.10, in a Colorado proceeding which sought to identify law enforcement personnel who leaked information to the press.  The relevant facts are laid out in the dissenting opinion.  The petitioner in the case is James Holmes, the accused shooter in the Aurora, Colorado, movie theater massacre. The respondent is a reporter who interviewed two law-enforcement persons about the contents of a package allegedly sent by James Holmes to his treating psychiatrist.  A Colorado court issued a subpoena to the reporter.  Supreme Court enforced the subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10).  Because the reporter has already appeared in Colorado, the controversy is moot.  But the First Department determined the exception to the mootness doctrine should be applied (important issue likely to recur, etc.). The reporter’s testimony about her confidential sources is protected in New York under Civil Rights Law section 79-h (b). But Colorado’s privilege statute is much weaker. The majority determined the privilege issue was irrelevant to the enforcement of the subpoena.  The dissent argued that the reporter would suffer “undue hardship” within the meaning of the statute if she were forced to reveal her confidential sources (because her livelihood depended on witness-confidentiality).  The majority wrote:

Petitioner furnished the court with a certificate issued, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), by the Araphoe County District Court Judge, and demonstrated that respondent’s testimony was “material and necessary” …, and that she would not suffer undue hardship because petitioner would pay the costs of her travel and accommodations … . …

The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination … . Respondent is entitled to assert whatever privileges she deems appropriate before the Colorado District Court. Compelling respondent to testify is distinguishable from compelling her to divulge the identity of her sources.  Matter of Holmes v Winter, 2013 NY Slip Op 05666, First Dept 8-20-13

 

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Published Information Gleaned from Court Submission Privileged

The First Department determined that news articles based upon papers filed in court proceedings were privileged pursuant to Civil Rights Law section 74:

Defendants moved to dismiss the complaint on the ground that all of the published material was absolutely privileged under Civil Rights Law § 74, which protects “the publication of a fair and true report of any judicial proceeding.” Supreme Court granted the motion, and we affirm.

It is undisputed that all statements claimed to be libelous are part of a “report of [a] judicial proceeding” (Civil Rights Law § 74) since the article reports on court papers, i.e., the FBI affidavit. Russian Am Found Inc v Daily News LP, 2013 NY Slip Op 05549, 1st Dept 8-6-13

 

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Release Precluded Civil Rights Action; No Showing Release Signed Under Duress; Releases Signed Under Duress Are Voidable Not Void

The Third Department affirmed the dismissal of plaintiff’s civil rights complaint based upon a release signed by the plaintiff.  The court determined that plaintiff’s allegations did not create a question of fact about whether the release was the product of duress.  The relevant legal principles, including the principle that contracts signed under duress are voidable, not void, were explained as follows:

Under  contract law, a signed release that is clear and unambiguous and knowingly and voluntarily entered into is binding on the parties unless cause exists to invalidate it on one of the recognized bases for setting aside written agreements, including illegality, fraud, mutual mistake, duress or coercion… .  A party such as plaintiff seeking to void a written contract on the ground of duress must meet her burden of demonstrating “(1) threats of an unlawful act by one party which (2) compel[] performance by the other party of an act which it had a legal right to abstain from performing”… .

Moreover, contracts executed under duress are, at most, voidable and not void and, by accepting and retaining the benefits of the second agreement for almost two years and not timely repudiating it, plaintiff affirmed or ratified that agreement, which is binding and no longer voidable on the grounds of duress, which objections are waived… .  Nelson v Lattner Enterprises of NY…, 515927, 3rd Dept 7-18-13

 

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NEWSPAPER ARTICLES ABOUT JUDICIAL PROCEEDINGS ENTITLED TO ABSOLUTE PRIVILEGE (CT APP)

The Court of Appeals determined the newspaper articles about plaintiff and plaintiff’s corporation were entitled to absolute privilege in this defamation action:

This defamation case arose from a series of articles and editorials published by The Buffalo News (News) in 2007 and 2008 concerning a federal investigation, related lawsuits and a guilty plea in federal court by National Air Cargo (NAC), an air freight forwarder, to settle allegations that it had overcharged the federal government on military freight contracts in the continental United States. The newspaper reported that NAC and its owner and chairman, plaintiff Christopher Alf, had admitted that NAC “cheated” the government over a period of several years in the amount of millions of dollars, that NAC would pay almost $28 million in fines and restitution, and that no executives would face jail time. Plaintiff sued for defamation, arguing that the News’s reporting was false and misleading because it reported prolonged wrongdoing as opposed to a single admitted false statement and because the average reader would think that plaintiff had personally engaged in wrongful conduct. Supreme Court granted summary judgment to the newspaper, holding that the News was entitled to the defense of absolute privilege under Civil Rights Law § 74, which provides 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.” The Appellate Division affirmed … .We now affirm as well.

… [T]he publication must be considered in its entirety when evaluating the defamatory effect of the words”… . … [V]iewing the articles as a whole, the average reader would conclude that the company, and not plaintiff, pleaded guilty to wrongdoing and that the amount of restitution covered more than the single, admitted incident. As we have said, “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality. When determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision” … . Here, the News provided substantially accurate reporting of the plea agreement and the fines and restitution, as discussed in open court. Thus, all the challenged statements concerning NAC and plaintiff relating to these proceedings are entitled to immunity under Civil Rights Law § 74. Alf v Buffalo News, Inc., 2013 NY Slip Op 04843 [21 NY3d 988], CtApp 6-27-13

 

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Only Personnel Records Used to Evaluate Police Officer’s Performance Protected from Disclosure​

In a full-fledged opinion by Justice Peters, the Third Department determined that the records of a hit-and-run accident involving a state trooper, sought in a Freedom of Information Law (FOIL) request made by a newspaper journalist, may be protected by the Civil Rights Law 50-a if they are personnel records used to evaluate performance toward continued employment, even after employment has been terminated.  In this particular case, however, the Third Department ruled that the respondent (police department) failed to demonstrate that the records sought fell squarely within the Civil Rights Law exception and the motion to dismiss should not have been granted.

Respondent’s motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records “fall[] squarely within the exemption”….   Here, petitioners’ FOIL request sought all “records, in any form” that “relate[d] to” the off-duty incident involving Beardsley. In reply, respondent withheld all of the requested records on the basis of a blanket invocation of Civil Rights Law § 50-a, without describing any of the documents withheld or offering a specific basis for the claimed exemption … .  In the Matter of Hearst Corporation… v New York State Police, 515693, 3rd Dept, 5-30-13

 

 

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Court Could Not Require Parolee to Submit Psychological and Medical Proof In Support of Name-Change Petition

In this case the Fourth Department determined the court could not require petitioner, a parolee, to provide psychological and medical proof in support of a petition for a name change.  The Fourth Department wrote:

 …[W]e agree with petitioner that the court erred in requiring him to provide psychological and medical proof in support of the amended petition; such proof is irrelevant when the petitioner seeks only to assume a different name, “not a declaration of a gender ‘change[] from male to female’ ” …. Here, petitioner has not requested a declaration regarding gender, but by the amended petition has asked the court “only to sanction legally petitioner’s desire for a change of name, after satisfying itself that petitioner has no fraudulent purpose for doing so and that no other person’s rights are interfered with thereby” ….  Matter of Anonymous, CA 12-02056, 426, 4th Dept, 5-3-13

 

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