MILLS v. RAYCOM MEDIA INC WSTM TV (2006)

Plaintiff commenced this defamation action against Raycom Media, Inc., Raycom, Inc., WSTM-TV, Inc. and James Kenyon (collectively, Raycom defendants) and against defendant Marjory York based upon a two-part investigative series entitled “A Cry for Help.” The series was aired on WSTM-TV News in February 2002, and a version of the series was published on WSTM-TV's website.   According to the series, the Cayuga County Family Court and the Cayuga County Department of Health and Human Services failed to prevent defendant Marjory York's child from being exposed to plaintiff despite numerous allegations that plaintiff had sexually abused the child.   We note at the outset that plaintiff does not address in his brief the propriety of the dismissal of the first amended complaint against defendants WSTM-TV, Inc. or Raycom, Inc. and thus is deemed to have abandoned any issue with respect to the dismissal of the first amended complaint against those defendants (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

 With respect to the remaining corporate defendant and its employee, defendant James Kenyon, we conclude that Supreme Court properly granted that part of the motion of the Raycom defendants seeking dismissal of the first amended complaint against those two defendants pursuant to Civil Rights Law § 74 and CPLR 3211(a)(1) and (7).  Civil Rights Law § 74 provides in relevant part that “[a] civil action cannot be maintained against any person ․ or corporation[ ] for the publication of a fair and true report of any judicial proceeding․” The Raycom defendants submitted evidence establishing that, in a neglect proceeding in Cayuga County Family Court, plaintiff was alleged to have sexually abused the child at issue in the series.   The neglect proceeding was eventually resolved pursuant to a stipulation in which plaintiff relinquished his visitation and custody rights with respect to the child and the neglect petition was dismissed.   We conclude that defendants Raycom Media, Inc. and James Kenyon thereby established that the material in the series was a fair and true report of the Family Court neglect proceeding within the meaning of Civil Rights Law § 74 (see Glendora v. Gannett Suburban Newspapers, 201 A.D.2d 620, 608 N.Y.S.2d 239, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 875, 639 N.E.2d 416;  cf. Seltzer v. Fields, 20 A.D.2d 60, 63-64, 244 N.Y.S.2d 792, affd. 14 N.Y.2d 624, 249 N.Y.S.2d 174, 198 N.E.2d 368;  Lacher v. Engel, 33 A.D.3d 10, 817 N.Y.S.2d 37).   Finally, we conclude that the court properly granted the motion of defendant Marjory York seeking dismissal of the first amended complaint against her as time-barred (see CPLR 215[3] ).

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

MEMORANDUM: