COTTRELL v. BERKSHIRE HATHAWAY INC (2006)

 Plaintiff commenced this action alleging that an article concerning Darryl “Reese” Johnson in the Buffalo News, written by defendant Dan Herbeck, defamed plaintiff by referring to plaintiff as a “rival” of Johnson.   We agree with defendants that Supreme Court properly granted their motion for summary judgment dismissing the complaint.   Where, as here, an article concerns a private individual on a matter of public concern, the plaintiff must establish that the defendants “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 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 341 N.E.2d 569;  see Yellon v. Lambert, 289 A.D.2d 486, 735 N.Y.S.2d 592;  Lee v. City of Rochester, 254 A.D.2d 790, 792, 677 N.Y.S.2d 848).   The “standard of ‘gross irresponsibility’ demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy” (Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 549, 435 N.Y.S.2d 556, 416 N.E.2d 557, rearg. denied 52 N.Y.2d 899, 437 N.Y.S.2d 1030, 418 N.E.2d 1337).

 Here, defendants met their initial burden on the motion by establishing that they were not grossly irresponsible, and plaintiff failed to raise a triable issue of fact (see Colon v. City of Rochester, 307 A.D.2d 742, 743, 762 N.Y.S.2d 749, appeal dismissed and lv. denied 100 N.Y.2d 628, 769 N.Y.S.2d 192, 801 N.E.2d 412;  Millennium of Rochester v. Town of Webster, 305 A.D.2d 1014, 1015, 758 N.Y.S.2d 582;  Elibol v. Berkshire-Hathaway, Inc., 298 A.D.2d 944, 945, 747 N.Y.S.2d 649).   Defendants established that, in writing the article, Herbeck relied on pleadings filed in federal court concerning Johnson, particularly the allegations therein that Johnson hired someone to kill plaintiff and attempted to murder plaintiff's bodyguard so that Johnson could take over the numbers operation at issue.   Herbeck also relied on conversations with an agent of the Federal Bureau of Investigation and an assistant United States attorney regarding those allegations, as well as conversations with several law enforcement officers wherein plaintiff was named as a person involved in the numbers operation.   Also contrary to plaintiff's contention, the statements by Herbeck were privileged pursuant to Civil Rights Law § 74.   The record establishes that the article was a fair and true report of the charges against Johnson in the federal action (see Millennium of Rochester, 305 A.D.2d at 1015, 758 N.Y.S.2d 582;  Misek-Falkoff v. American Lawyer Media, 300 A.D.2d 215, 216, 752 N.Y.S.2d 647, lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477, rearg. denied 100 N.Y.2d 616, 767 N.Y.S.2d 398, 799 N.E.2d 621), i.e., that the article was “substantially accurate” (Liffiton v. Buffalo Evening News, 143 A.D.2d 515, 515, 532 N.Y.S.2d 947, lv. dismissed 74 N.Y.2d 650, 542 N.Y.S.2d 519, 540 N.E.2d 714;  see Misek-Falkoff, 300 A.D.2d at 216, 752 N.Y.S.2d 647).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: