Kerwick v. Orange County Publications Division of Ottaway Newspapers, Inc.

420 N.E.2d 970, 53 N.Y.2d 625, 7 Media L. Rep. (BNA) 1152, 438 N.Y.S.2d 778, 1981 N.Y. LEXIS 2295

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs.

On the publisher’s motion for summary judgment it was not disputed that the editorial complained of was factually false. The publisher’s editor admitted in the course of his examination before trial that his conduct with respect to the factual material contained in the editorial did not “meet with the standards of [the] profession in information gathering and dissemination” as he understood them, in that there was “Reliance on memory rather than search of material, or original research”. This admission, unaccompanied by any explanation or justification, constituted evidentiary proof in admissible form showing facts sufficient to require a trial on the issue of malice. That a retraction was promptly published might be considered evidence of lack of malice in certain instances but would not be sufficient as a matter of law for that purpose.

Accordingly, it was-error to grant the motion for summary judgment.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and defendant’s motion for summary judgment denied in a memorandum.