McDONALD v. EAST HAMPTON STAR (2004)

In an action to recover damages for defamation, the defendants appeal from an order of the Supreme Court, Suffolk County (Henry, J.), dated September 25, 2003, which denied their motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 Civil Rights Law § 74 provides, in relevant part, 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 Court of Appeals has noted that “[f]or a report to be characterized as ‘fair and true’ within the meaning of the statute, thus immunizing its publisher from a civil suit sounding in libel, it is enough that the substance of the article be substantially accurate” (Holy Spirit Assn. for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 67, 424 N.Y.S.2d 165, 399 N.E.2d 1185).   Moreover, “a fair and true report admits of some liberality;  the exact words of every proceeding need not be given if the substance be substantially stated” (Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, Inc., 260 N.Y. 106, 118, 183 N.E. 193).

 Here, the newspaper article upon which this defamation action is based was a substantially accurate report of a judicial decision dismissing a federal lawsuit commenced by the plaintiff to recover damages for unlawful discharge.   The subject article contained a condensed but accurate description of the nature of the federal lawsuit and the court's rationale for dismissing it, and did not suggest that the suit was frivolous.   Although the article failed to report that the federal court's decision granted the plaintiff leave to file an amended complaint, and that he thereafter filed an amended complaint, those omissions did not alter the substantially accurate character of the article (see Glendora v. Gannett Suburban Newspapers, 201 A.D.2d 620, 608 N.Y.S.2d 239;  Becher v. Troy Publ. Co., 183 A.D.2d 230, 236-237, 589 N.Y.S.2d 644;  Sprecher v. Dow Jones & Co., 88 A.D.2d 550, 552, 450 N.Y.S.2d 330, affd. for reasons stated 58 N.Y.2d 862, 460 N.Y.S.2d 527, 447 N.E.2d 75;  Gurda v. Orange County Pub. Div. of Ottaway Newspapers, 81 A.D.2d 120, 133, 439 N.Y.S.2d 417, revd. on concurring and dissenting opn. below 56 N.Y.2d 705, 451 N.Y.S.2d 724, 436 N.E.2d 1326).   Accordingly, we find, as a matter of law, that the subject article was absolutely privileged pursuant to Civil Rights Law § 74 (see Holy Spirit Assn. For Unification of World Christianity v. New York Times Co., supra ), and the defendants' motion, in effect, for summary judgment dismissing the complaint should have been granted.