SANDS v. NEWS AMERICA PUBLISHING INC (1997)

Order, Supreme Court, New York County (Carol Arber, J.), entered February 16, 1996, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Based upon the three public offices that plaintiff held, School Board member, in which position he spoke at meetings covered by the press, Democratic Committeeman and Director of the Public Development Corporation, as well as plaintiff's roles as a fundraiser for a political candidate and an active member of several civic organizations, the motion court correctly found plaintiff to be a public figure, albeit a “limited issue” public figure, who had to plead and prove constitutional malice (see, James v. Gannett Co., 40 N.Y.2d 415, 422-423, 386 N.Y.S.2d 871, 353 N.E.2d 834;  Kaplansky v. Rockaway Press, 203 A.D.2d 425, 610 N.Y.S.2d 581, lv. denied 84 N.Y.2d 810, 621 N.Y.S.2d 519, 645 N.E.2d 1219;  Sweeney v. Prisoners' Legal Servs., 146 A.D.2d 1, 6, 538 N.Y.S.2d 370, lv. dismissed 74 N.Y.2d 842, 546 N.Y.S.2d 558, 545 N.E.2d 872).   It does not avail plaintiff that he no longer held these official positions or participated in matters of civic interest at the time the alleged defamatory statements were written (see, Rosenblatt v. Baer, 383 U.S. 75, 87, 86 S.Ct. 669, 676, 15 L.Ed.2d 597, n. 14;  Zerangue v. TSP Newspapers, 814 F.2d 1066, 1069).   On the issue of malice, plaintiff failed to submit evidence of “convincing clarity” that defendants were aware that the article was probably false, and, accordingly, summary judgment was properly granted (see, 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;  Sweeney v. Prisoners' Legal Servs. of New York, 84 N.Y.2d 786, 793, 622 N.Y.S.2d 896, 647 N.E.2d 101).   Plaintiff's telephone call to the reporter who wrote the article, in which plaintiff denied the truth of an earlier article by the same reporter that was substantially to the same effect as the article in issue, does not constitute clear and convincing evidence of malice;  “such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error” (Edwards v. National Audubon Socy., 556 F.2d 113, 121, cert. denied 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498;  see also, Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 383, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456).

MEMORANDUM DECISION.