Bouchard v. Daily Gazette Company , 25 N.Y.S.3d 730 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 25, 2016 520373
________________________________
MICHAEL G. BOUCHARD,
Appellant,
v MEMORANDUM AND ORDER
DAILY GAZETTE COMPANY et al.,
Respondents,
et al.,
Defendants.
________________________________
Calendar Date: January 5, 2016
Before: McCarthy, J.P., Lynch, Devine and Clark, JJ.
__________
Michael G. Bouchard, Latham, appellant pro se.
Nixon Peabody, LLP, Albany (Andrew C. Rose of counsel), for
respondents.
__________
Clark, J.
Appeal from an order of the Supreme Court (Connolly, J.),
entered September 10, 2014 in Albany County, which granted a
motion by defendants Daily Gazette Company and The Daily Gazette
to dismiss the complaint against them.
In November 2012, plaintiff, an attorney, was convicted in
the US District Court for the Northern District of New York for
alleged crimes committed in Albany, Rensselaer and Schenectady
Counties. On November 30, 2012, defendants Daily Gazette Company
and The Daily Gazette (hereinafter collectively referred to as
defendants) received a Department of Justice (hereinafter DOJ)
press release entitled "Attorney Convicted in Mortgage Fraud
Prosecution," detailing plaintiff's charges and conviction and,
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later that day, published an article entitled "Albany lawyer
convicted of mortgage fraud" based upon such press release.
Thereafter, on November 27, 2013, plaintiff commenced this action
for libel, alleging that defendants published false, libelous and
defamatory statements about him in their newspaper. Defendants
moved to dismiss plaintiff's complaint for failing to state a
legally viable cause of action, arguing that their article was an
accurate representation of the DOJ press release and, therefore,
it was privileged under Civil Rights Law § 74. Supreme Court
granted such motion, dismissing plaintiff's complaint against
said defendants, and plaintiff now appeals. We affirm.
Civil Rights Law § 74 provides, in relevant part, that "[a]
civil action cannot be maintained against any person, firm or
corporation, for the publication of a fair and true report of any
judicial proceeding" and, as such, "cloaks those publishing fair
and true reports of judicial proceedings with immunity from civil
liability" (Hughes Training, Inc., Link Div. v Pegasus Real-Time,
255 AD2d 729, 730 [1998]). "[A]n article may be characterized as
'fair and true' if it is substantially accurate" (Tenney v
Press-Republican, 75 AD3d 868, 868 [2010]; see Holy Spirit Assn.
for Unification of World Christianity v New York Times Co., 49
NY2d 63, 67 [1979]). Moreover, "[a] fair and true report admits
of some liberality; the exact words of every proceeding need not
be given if the substance be substantially stated" (Holy Spirit
Assn. for Unification of World Christianity v New York Times Co.,
49 NY2d at 67 [internal quotation marks and citation omitted];
see Briarcliff Lodge Hotel, Inc. v Citizen-Sentinel Publs., 260
NY 106, 118 [1932]) and "there is 'no requirement that a
publication report the plaintiff's side of the controversy'"
(Tenney v Press-Republican, 75 AD3d at 869, quoting Cholowsky v
Civiletti, 69 AD3d 110, 115 [2009] [brackets omitted]). Minor
inaccuracies are "'not serious enough to remove [a party's]
reportage from the protection of Civil Rights Law § 74'"
(Misek-Falkoff v McDonald, 63 Fed Appx 551, 552 [2d Cir 2003],
cert denied 541 U.S. 960 [2004], quoting Misek-Falkoff v American
Lawyer Media, 300 AD2d 215, 216 [2002], lv denied 100 NY2d 508
[2003], cert denied 541 U.S. 939 [2004]).
In light of the foregoing standard, we agree with Supreme
Court that defendants' published statements were a fair and true
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representation of the DOJ press release, thus falling within the
statutory privilege afforded by Civil Rights Law § 74. Although
defendants used language that differed slightly from the DOJ
press release in their article, given plaintiff's criminal
charges and convictions detailed in the press release, the
language used "does not suggest more serious conduct than that
actually suggested in the official proceeding" (Geiger v Town of
Greece, 311 Fed Appx 413, 417 [2d Cir 2009] [internal quotation
marks and citation omitted]; see Karedes v Ackerley Group, Inc.,
423 F3d 107, 119 [2d Cir 2005]; Hughes Training, Inc., Link Div.
v Pegasus Real-Time, 255 AD2d at 730). A liberal reading of
defendants' statements in the context of the article demonstrates
that the statements are substantially accurate and, thus, a fair
and true report of the DOJ press release (see Alf v Buffalo News,
Inc., 21 NY3d 988, 990 [2013]; Becher v Troy Publ. Co., 183 AD2d
230, 236-237 [1992]). Moreover, viewing the article in its
entirety and affording defendants' statements "some liberality"
(Briarcliff Lodge Hotel, Inc. v Citizen-Sentinel Publs., 260 NY
at 118), to the extent that there may be any inaccuracies, they
are "not so egregious as to remove the article from the
protection of Civil Rights Law § 74" (Saleh v New York Post, 78
AD3d 1149, 1152 [2010], lv denied 16 NY3d 714 [2011]; see Posner
v New York Law Publ. Co., 228 AD2d 318, 318 [1996], lv denied 89
NY2d 805 [1996]). Accordingly, granting defendants' motion was
proper.
McCarthy, J.P., Lynch and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court