DANIEL GOLDREYER LTD v. 25 (1999)

Judgment, Supreme Court, New York County (Edward Greenfield, J.), entered July 9, 1998, which denied defendant-appellant's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

 Plaintiff is an art restorer, controversial and well-known in the profession, but not outside of it.   This libel action arose as the result of his use of certain questionable techniques in the restoration of a valuable painting for a Dutch museum and the brief, droll article published by defendant Dow Jones reporting on the ensuing controversy.   The alleged defamatory statements include the headline, the three mock-melodramatic lead questions, and a paragraph regarding the conclusion of a forensic laboratory.

Pursuant to the analysis set forth in Waldbaum v. Fairchild Publications, D.C.Cir., 627 F.2d 1287, cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 and Dameron v. Washington Mag., D.C.Cir., 779 F.2d 736, 743, cert. denied, 476 U.S. 1141, 106 S.Ct. 2247, 90 L.Ed.2d 693, we conclude that the circumstances here resulted in plaintiff being cast as an involuntary limited purpose public figure.   As such, in order to prevail on his motion for summary judgment, he must prove “that a reasonable jury might find that actual malice has been shown with convincing clarity” (Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202;  Freeman v. Johnston, 84 N.Y.2d 52, 56-57, 614 N.Y.S.2d 377, 637 N.E.2d 268, cert. denied, 513 U.S. 1016, 115 S.Ct. 576, 130 L.Ed.2d 492).  “Actual malice” has been defined as making an alleged false statement with knowledge that it was false or with reckless disregard as to whether it was false or not (New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686;  Thanasoulis v. Natl. Assn. for the Specialty Foods Trade, 226 A.D.2d 227, 228-229, 640 N.Y.S.2d 562).

 The record clearly reveals the absence of evidence suggesting awareness by the Dow Jones defendants that any statements in the article were false or that the article was published with reckless disregard for the truth.   Consequently, such conduct by defendant cannot be established with clear and convincing proof.   Moreover, the fact that plaintiff never responded to the reporter's telephone message and that the forensic laboratory report was written in Dutch meant that two additional sources of information were foreclosed to the reporter;  nevertheless, the article accurately stated that while plaintiff denied using house paint on the canvas, he admitted coating it with a sealant.

MEMORANDUM DECISION.