Scacchetti v. Gannett Co.

Order affirmed with costs. Memorandum: Special Term erred in determining that defendant’s summary judgment motion is barred by the rule prohibiting successive summary judgment motions. Defendant’s prior motion was made pursuant to CPLR 3211 (a) (7) and the court’s entry of judgment was without notice to the parties (Scacchetti v Gannett Co., 90 AD2d 985). We agree with Special Term that the "single instance rule” is inapplicable to this libel action because the statement complained of by plaintiff tends to "show * * * a lack of character or a total disregard of professional ethics” (Mason v Sullivan, 26 AD2d 115, 117) and is thus "arguably libelous per se” (Scacchetti v Gannett Co., supra, p 986). Contrary to the conclusion of Special Term, however, we find that plaintiff, a police sergeant, is a public official as a matter of law (see, Brady v Ottaway Newspapers, 84 AD2d 226, 239-240; Malerba v Newsday, Inc., 64 AD2d 623, 624; Orr v Lynch, 60 AD2d 949, 950, affd 45 NY2d 903) since the allegedly libelous statement concerns acts or conduct " 'which might touch on [his] fitness for office’ ” (Gertz v Robert Welch, Inc., 418 US 323, 345, quoting Garrison v Louisiana, 379 US 64, 77). As a consequence, plaintiff must prove that defendant published the offending article with actual malice, i.e., with knowledge of its falsity or reckless disregard of whether it was false (New York Times Co. v Sullivan, 376 US 254, 279-280). While we disagree with Special Term’s finding that defendant published the statement with knowledge of its falsity, we believe plaintiff has shown sufficient reasons to doubt the veracity of the article (see, St. Amant v Thompson, 390 US 727, 732-733) so as to warrant trial on the issue.

The offending article, which incorrectly identified plaintiff as the individual who "spewed obscenities” about the Federal Judge who had just sentenced his brother, Judge Scacchetti, to prison, was written by an experienced reporter, Nancy Monaghan. She was assigned to cover the sentencing in place of the reporter who had covered the trial. After the sentencing, she observed Judge Scacchetti, his wife, his lawyer, a codefendant and his lawyer and others, including the individual she believed to be the plaintiff, gathered in the corridor of the courthouse and heard that individual revile the Judge. Before writing the story, Monaghan attended an impromptu press conference held by Judge Scacchetti, reviewed related newspaper articles and interviewed two United States Attorneys. She did not, however, ask anyone to confirm the speaker’s identity despite the fact that she knew several persons present, including lawyers and other journalists. Instead, she relied on her recollection that an individual whom she believed to be the plaintiff had been pointed out to her in the Hall of Justice some years before. She could not recall the circumstances under which that identification was made nor the person who had made it.

The subject incident occurred at approximately 10:00 a.m. and Monaghan filed her story at 5:00 or 6:00 p.m., long before her 10:30 p.m. deadline, and thus had ample time to verify its accuracy. On these facts, we believe a reasonable jury could find clear and convincing evidence that defendant published with actual malice (see, Anderson v Liberty Lobby, 477 US —, 106 S Ct 2505 [1986]).

All concur, except Green and Lawton, JJ., who dissent and vote to reverse and grant the motion, in the following memorandum.