GROSS v. John Grauerholz, et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

Elliot M. GROSS, Plaintiff-Appellant-Respondent, v. NEW YORK TIMES COMPANY, et al., Defendants-Respondents, Theodore Ehrenreich, Defendant-Respondent-Appellant, John Grauerholz, et al., Defendants.

Decided: March 22, 2001

SULLIVAN, P.J., ROSENBERGER, NARDELLI, TOM and MAZZARELLI, JJ. Leon Segan, for Plaintiff-Appellant-Respondent. Dean Ringel, for Defendants-Respondents. John W. McConnell, for Defendant-Respondent-Appellant.

Order, Supreme Court, New York County (Elliott Wilk, J.), entered December 8, 1999, which granted the motion of defendants The New York Times Company, Philip Shenon, Sam Roberts, A.M. Rosenthal, and Peter Millones (the “Times defendants”) for summary judgment but denied the motion of defendant Estate of Theodore Ehrenreich for summary judgment, unanimously modified, on the law, to grant the motion of the Ehrenreich Estate for summary judgment dismissing the complaint as against it, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of defendant-respondent-appellant dismissing the complaint.   Judgment, same court and Justice, entered December 9, 1999, which pursuant to the court's prior grant of summary judgment, dismissed the complaint as against the Times defendants, unanimously affirmed, without costs.

 Summary judgment was properly granted dismissing the complaint as against the Times defendants in light of the failure of plaintiff, a public figure, to raise a triable issue as to whether the complained of statements were published with actual malice.   Plaintiff did not meet his “burden of presenting evidence that could demonstrate, with convincing clarity, that [the Times defendants] either knew that the statements were false or published them with a high degree of awareness that they were probably false” (see, Goldblatt v. Seaman, 225 A.D.2d 585, 586, 639 N.Y.S.2d 438).   The evidence relied upon by plaintiff in opposing the Times defendants' summary judgment motion, much of which is purportedly probative of the Times's failure to investigate certain sources and of the circumstance that some of the Times's sources may have borne plaintiff ill-will, is not probative of actual malice since it does not warrant the inference that the Times defendants entertained serious doubts about the truth of the complained of statements (see, 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;  Church of Scientology Intl. v. Time Warner, 903 F.Supp. 637, affd. 2d Cir., 238 F.3d 168;  see, also, Ortiz v. Valdescastilla, 102 A.D.2d 513, 478 N.Y.S.2d 895).   Accordingly, with respect to the Times defendants, plaintiff has not sustained his “daunting” burden (see, McFarlane v. Esquire Magazine, D.C.Cir., 74 F.3d 1296, 1308, cert. denied 519 U.S. 809, 117 S.Ct. 53, 136 L.Ed.2d 16) of demonstrating that a jury could find actual malice with “convincing clarity” (see, Freeman v. Johnston, 84 N.Y.2d 52, 56, 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).

 Applying the actual malice standard with respect to plaintiff's defamation claims as against the non-media defendant, the Ehrenreich Estate (see, Hammerhead Enters. v. Brezenoff, 551 F.Supp. 1360, 1369, affd. 2d Cir., 707 F.2d 33, cert. denied 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228;   McGill v. Parker, 179 A.D.2d 98, 108, 582 N.Y.S.2d 91), we find sufficient evidence that the complained of statements by the Estate's decedent were made without actual malice to warrant scrutiny of the sufficiency of plaintiff's opposition to the Estate's summary judgment motion.   Such scrutiny discloses that plaintiff has failed to raise a triable issue of fact as to whether defendant Estate's decedent knew the factual statements he was making by implication were false, entertained serious doubts as to their truth, or had a high degree of awareness of their probable falsity (see, Sweeney v. Prisoners' Legal Servs., 84 N.Y.2d, supra, at 793, 622 N.Y.S.2d 896, 647 N.E.2d 101).   Since plaintiff offered no evidence on these issues, defendant Estate is entitled to summary judgment dismissing the complaint as against it.

We have considered plaintiff's remaining arguments and find them unavailing.