ARMSTRONG v. SIMON SCHUSTER INC

Reset A A Font size: Print

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

Michael F. ARMSTRONG, Plaintiff-Appellant, v. SIMON & SCHUSTER, INC., etc., et al., Defendants-Respondents.

Decided: February 27, 2001

MAZZARELLI, J.P., ELLERIN, WALLACH, RUBIN and SAXE, JJ. David Simon, for Plaintiff-Appellant. Robert F. Cusumano, for Defendants-Respondents.

Judgment, Supreme Court, New York County (Barry Cozier, J.), entered October 18, 1999, which, upon the prior grant of defendants' motion for summary judgment, dismissed the complaint, unanimously affirmed, without costs.

 Plaintiff, a well-known criminal defense attorney who has held a series of public appointments and represented a variety of high-profile individuals, has not hesitated to seek media attention, and did so repeatedly to influence public opinion in connection with his representation of an individual embroiled in a highly publicized insider trading prosecution, which prosecution was a principal subject of the book in which the allegedly libelous passage about plaintiff was published by defendants.   Plaintiff was thus properly found by the motion court to be a limited public figure for purposes of this litigation (see, Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 41 L.Ed.2d 789;  James v. Gannett Co., Inc., 40 N.Y.2d 415, 421-422, 386 N.Y.S.2d 871, 353 N.E.2d 834;  Krauss v. Globe Intl., Inc., 251 A.D.2d 191, 192, 674 N.Y.S.2d 662).   Given his limited public figure status, plaintiff was required to prove by clear and convincing evidence that the complained of passage in defendants' book, in addition to being substantially false and defamatory, was published with actual malice, i.e., with “knowledge that it was false or with reckless disregard of whether it was false or not” (see, New York Times v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686;  Freeman v. Johnston, 84 N.Y.2d 52, 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;  Khan v. The New York Times Co., Inc., 269 A.D.2d 74, 77-79, 710 N.Y.S.2d 41).   Since plaintiff failed to raise any triable issue as to whether the allegedly libelous passage was, in fact, published with actual malice, defendants' motion for summary judgment dismissing the complaint was properly granted.

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