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• Title: Ross J. Di Lorenzo v. New York News
• Author : Supreme Court of New York
• Release Date : January 06, 1981
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

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dated February 3, 1981 is recalled and vacated and the following decision is substituted therefor: Motion by defendants for leave to appeal to the Court of Appeals from an order of this court dated October 20, 1980 [78 A.D.2d 669] which determined an appeal from an order of the Supreme Court, Kings County, entered April 30, 1979. Motion denied. On this courts own motion, decision in the above-entitled case is amended to read as follows: In an action to recover damages for libel, the plaintiff appeals from an order of the Supreme Court, Kings County, entered April 30, 1979 which granted the defendants motion for summary judgment and dismissed the complaint. Order reversed, with $50 costs and disbursements, motion denied and complaint reinstated. This appeal concerns a defamation action brought by Ross Di Lorenzo, a former Civil Court Judge and an admitted public figure, against the New York News, Inc., and one of its reporters, John Toscano. Di Lorenzo seeks to recover damages for the publication of an article in the New York Daily News in which Toscano falsely reported, immediately prior to the Democratic primary for Brooklyn Borough President in which Di Lorenzo was a candidate, that Di Lorenzo had been convicted of perjury. After discovery was complete, the defendants moved for summary judgment and the motion was granted. The plaintiff appeals from that determination. At the summary judgment stage in a defamation action which has constitutional implications, a public figure plaintiff is required only to submit evidence "which shows a genuine issue of material fact from which a reasonable jury could find actual malice with convincing clarity" (Nader v de Toledano, 408 A2d 31, 49; see, also, Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065; Rinaldi v Holt Rinehart & Winston, 42 N.Y.2d 369; James v Gannett Co., 40 N.Y.2d 415). Concern for the First Amendment should not be transformed into a requirement that the plaintiff prove actual malice to the motion court (Nader v de Toledano, supra, p 49). In the instant case Special Term determined that Di Lorenzo had failed to establish material questions of fact which would be sufficient to warrant an ultimate finding of actual malice. We disagree. In August, 1973 Di Lorenzo was indicted for eight counts of perjury in the first degree and one count of obstructing governmental administration. Thereafter the obstruction charge was dismissed prior to trial; he was acquitted after two trials of six of the perjury counts; of the remaining perjury counts, one was dismissed on motion by the Special Prosecutor and the other was apparently abandoned. Toscano did not cover these events but was aware of them at the time they occurred. Several stories concerning the outcome were published in the Daily News. In April, 1977 Toscano, whose assignment had included local politics in Brooklyn and Queens for the past eight years, wrote an article concerning Di Lorenzos entry into the primary race. His account of Di Lorenzos criminal difficulties was consistent with the facts. "Di Lorenzo, 69, left the bench about two years ago after being indicted for perjury growing out of his testimony in a disciplinary proceeding before a judicial tribunal. He was eventually cleared on all counts." The story was written shortly after Toscano had had dinner with Di Lorenzo. Di Lorenzo claims that during that meeting the resolution of the indictment was discussed in detail. Toscano admits only that a passing reference to the outcome may have been made and that after this meeting, he "did not have a clear understanding of the various legal steps leading to dismissal of the charges." A little more than four months after the first story, in the week preceding the September, 1977 primary, Toscano wrote a "round-up" article for the Brooklyn section of the Sunday Daily News concerning the candidates and issues involved in the Brooklyn Borough President race. It contained the following [81 A.D.2d 844 Page 846]

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