Ortiz v. Valdescastilla

102 A.D.2d 513, 478 N.Y.S.2d 895, 10 Media L. Rep. (BNA) 2193, 1984 N.Y. App. Div. LEXIS 18815
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 5, 1984
StatusPublished
Cited by20 cases

This text of 102 A.D.2d 513 (Ortiz v. Valdescastilla) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. Valdescastilla, 102 A.D.2d 513, 478 N.Y.S.2d 895, 10 Media L. Rep. (BNA) 2193, 1984 N.Y. App. Div. LEXIS 18815 (N.Y. Ct. App. 1984).

Opinions

[514]*514OPINION OF THE COURT

Sullivan, J.

Plaintiff Alvaro Ortiz, a producer of theatrical shows for the Spanish-speaking community in the New York metropolitan area, seeks damages for an alleged libel which appeared in the entertainment column of the Sunday magazine section of El Diario-La Prensa on October 25, 1981. Named as defendants are Dimarco Valdescastilla, a freelance author who wrote the article and sold it to El Diario and under whose by-line the article appeared; Gannett El Diario Subsidiary, Inc., the corporate publisher of El Diario; and its parent, Gannett Co., Inc.1

Although not specifically mentioned, plaintiff claims that to the readers of El Diario he is unmistakeably the producer described in the following article: “The Venezuelan actress Lupita Ferrer had to be assisted in a New York hospital due to an anemic condition provoked by a problem with the producer that brought her to perform in New York. It was because said producer when the contract was over with Lupita, did not want to pay the amount due to her for her work. This was not the luck of her partner, the actor Jose Bardina, because, everyday, at the end of each show, he went to the box office to collect his day’s work. Lupita was taken to the hospital by her mother, Yolanda Ferrer. It is a pity, expressed the popular actress, that this happened to me. In the future I will not trust the producers of New York. Writing this note, Lupita has almost recuperated from the headaches she got from coming to perform in New York.”

The events leading to the article’s publication are uncontradicted. The information contained in the article was gathered by Juan Caballero, an experienced free-lance photographer and author, whose specialty is Hispanic entertainment and whose photographs and articles have been published in a number of Spanish-language publications. At the time of the publication of the article Valdescastilla and Caballero, who had been recommended to Valdescastilla by the editors of a Spanish-language magazine in Puerto Rico for which Caballero had worked before becom[515]*515ing an independent free-lance journalist, enjoyed a long-term professional relationship. Valdescastilla had used Caballero as a photographer and relied upon him as a source of information since approximately 1976. Caballero’s information had always proven to be authentic and accurate and Valdescastilla regarded him as a highly reliable and trustworthy source.

Valdescastilla, the author of the article, is also a freelance writer with extensive journalistic experience. He has been a professional writer for 21 years, and also specializes in Hispanic entertainment. His articles appear regularly in many Spanish-language publications and for the past 10 years he has sold articles to El Diario. Prior to this lawsuit, none of his articles had ever been subject to criticism or dispute concerning its truth or accuracy.

In October, 1981, plaintiff staged a theatrical production in New York City in which Ms. Ferrer performed. Valdescastilla asked Caballero to attend the show and to take photographs of her. Valdescastilla also suggested, should the opportunity present itself, that Caballero interview Ms. Ferrer.

Approximately one week later, Caballero met with Valdescastilla and turned over the photographs he had taken of Ms. Ferrer. At that time, Caballero furnished Valdescastilla with the information which later appeared in the article. In recounting the incident, Caballero reported that he had spoken to both the actress and her mother and that he had personally, at Ms. Ferrer’s request, taken her to New York Hospital since she was unfamiliar with New York City.

Since Valdescastilla had no reason to doubt the truth and accuracy of the information he received from Caballero, he did not check the story any further. In fact, when Caballero reported to Valdescastilla, Ms. Ferrer had already left New York, presumably for Venezuela. Nor did Valdescastilla telephone plaintiff, whose name he knew, but whom he did not recognize as the unnamed producer involved in the incident.

After speaking with Caballero, Valdescastilla wrote the article, which he then submitted to the Sunday magazine editor at El Diario. El Diario purchased the article for $25, [516]*516and then processed it in accordance with its standard editorial procedures. The article was reviewed by the editor of the Sunday magazine section, who would routinely contact free-lance authors if she had any questions. After this initial editorial review, the article was typed into the computer and sent to the composing room for page makeup. The production manager then edited the final page makeup prior to publication. After these two editorial reviews, the article was published without any change in the text which Valdescastilla had submitted.

Plaintiff thereafter commenced this action without ever demanding a retraction or correction of the article. After completing discovery, he moved for partial summary judgment with respect to liability, whereupon all three defendants cross-moved for summary judgment dismissing the complaint. In support of the motion, plaintiff submitted affidavits from Ms. Ferrer and Mr. Bardina, who was also mentioned in the article, in which each denied making the statements attributed to them. On the other hand, Valdescastilla, in his affidavit, states that after the commencement of this action, he communicated with Ms. Ferrer, who confirmed the truth of what was published. Special Term denied both motions. Defendants appeal.

While we agree that, as this record stands, an issue of fact exists as to whether Valdescastilla may be held liable, the El Diario publishers are entitled to summary judgment. Their reliance upon the integrity of a reputable author bars, as a matter of law, a finding of actionable fault against them under New York libel law.

At the outset, we note our agreement with Special Term that, contrary to defendants’ argument, the article is susceptible of a defamatory interpretation since it “tends to disparage [plaintiff] in the way of his office, profession or trade.” (Nichols v Item Publishers, 309 NY 596, 601; see Four Star Stage Light, v Merrick, 56 AD2d 767; Book v Severino, 51 AD2d 911.) The court must, in the first instance, decide whether the words of which plaintiff complains are susceptible of the meaning ascribed to them. (Tracy v Newsday, Inc., 5 NY2d 134, 136.) If the words are reasonably susceptible of a defamatory connotation, then “it becomes the jury’s function to say whether that was the [517]*517sense in which the words were likely to be understood by the ordinary and average reader.” (Mencher v Chesley, 297 NY 94, 100.) The focus of the controversy, on this appeal, however, is not with whether the article is defamatory but rather with whether plaintiff, on defendants’ motion for summary judgment, made a factual showing sufficient to defeat their qualified privilege as journalists under the standard enunciated in Chapadeau v Utica Observer-Dispatch (38 NY2d 196).

While defamation was a tort of strict liability at common law (see Herbert v Lando, 441 US 153), the law is now well settled that some degree of fault is required before liability may be imposed upon a newspaper or broadcaster for the publication of a defamatory falsehood. (Gertz v Robert Welch, Inc., 418 US 323; New York Times Co. v Sullivan,

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102 A.D.2d 513, 478 N.Y.S.2d 895, 10 Media L. Rep. (BNA) 2193, 1984 N.Y. App. Div. LEXIS 18815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-valdescastilla-nyappdiv-1984.