Plaintiff was the Director of the New York State Division of the Lottery from April to December, 1975. In early 1975, defendant New York News, Inc. (the News), through its reporters Federici and Poster, began an investigation of the operation of the lottery. From their investigation, the
The articles begin by accusing the lottery of "gypping" and "systematically cheating" the public by issuing 4 to 6 million tickets, all of which participate in the weekly drawing despite sales of less than 3 million. This is stated to have been responsible for there having been no grand prize awarded in 17 of 38 weekly drawings and the creation of a $1,500,000 surplus which "by law should never have existed". Lottery officials are reported as having contemplated several acts of dubious legality, including transferring the whole surplus to the State treasury and "covering up" losses on one special drawing by using interest earned on undistributed installments of other prize money. However, it is stated, they were "warned off" by their lawyers. The editorial characterizes the practices described in the
In a previous appeal, we reversed Special Term's dismissal of the complaint for legal insufficiency (Bruno v New York News, 68 A.D.2d 987). Subsequently, after obtaining pretrial disclosure through interrogatories, the News successfully moved for summary judgment dismissing the entire action, and this appeal followed.
It is uncontested that whatever criticism of plaintiff can be read from the articles in question, all of it related to his status as a public official and to the performance of his official duties. Therefore, on this motion for summary judgment, in addition to having to present proof in evidentiary form sufficient to create a triable issue of fact concerning the defamatory character of the News' publications
Before applying these general principles, however, we must first resolve the issue of whether the News' attacks on the lottery itself, its operation, and "Lottery officials" may constitutionally give rise to liability as defamatory of plaintiff. In New York Times Co. v Sullivan (supra), the Supreme Court held that defamatory falsehoods concerning alleged civil rights deprivations by the Montgomery, Alabama, police could not, standing alone, be actionable on behalf of the plaintiff on the bare fact of his official position as police commissioner, because this would be tantamount to an award of damages for a libel on government itself (New York Times Co. v Sullivan, supra, pp 290-292). However, in Rosenblatt v Baer (383 U.S. 75, 81-83), the court limited this holding in New York Times to instances where there was no extrinsic evidence linking the criticism of the governmental body to the official personally. Here, the evidence was sufficient to at least create a jury question as to whether the articles referred to plaintiff and were reasonably read as such. All but one of the articles were published daily in series between October 15, 1975 and October 25, 1975. In many, plaintiff was identified as the lottery's chief administrator and defender. Plaintiff's photograph was an inset to the "schemeroo" editorial. Additionally, plaintiff presented evidence consisting of excerpts from letters of dissatisfied lottery players in which he was identified as the "gyp" and "cheat" in the very same
Even though the accusations of cheating, gypping, and being conscienceless may be read against plaintiff, examining them in the context in which they appear leads us to conclude that they are not actionable. Expressions of opinion are constitutionally privileged when accompanied in the articles by objective facts supporting them (Gertz v Robert Welch, Inc., 418 U.S. 323, 339-340; Rinaldi v Holt, Rinehart & Winston, supra, p 380). The supportive facts concerning the overdistribution of tickets, failure to award prizes, and unanticipated surplus are repeatedly included within the context of the accusatory articles and were literally true. Thus, labeling the lottery as a "gyp", and accusing it of "systematically cheating" the public and being without a conscience on the stated basis of those facts constitute nothing more than the kind of "rhetorical hyperbole" which was held immune in connection with the charge of "blackmail" in Greenbelt Pub. Assn. v Bresler (398 U.S. 6, 10-11), of "corruption" in Silsdorf v Levine (85 A.D.2d 297, 300-301), and the characterization of the plaintiff as a "fellow traveler of fascism" in Buckley v Littell (539 F.2d 882, 893, cert den 429 U.S. 1062; see, also, Orr v Lynch, supra). This equally applies to the statements attributed to one of the reporters at the October 7 meeting set forth in plaintiff's first cause of action. Also falling within the opinion category are the accusations of plaintiff's use of lottery staff positions for political patronage (concededly plaintiff made significant replacements and additions to his staff) and the general charges of his incompetence and mismanagement (Rinaldi v Holt, Rinehart & Winston, supra, p 381). Nor was it actionable to portray plaintiff as contemplating fiscal manipulation of the Colossus operation, either by transferring its surplus to the State treasury or in order to "cover up" losses on one of its special drawings, until dissuaded by legal advisors. Clearly there was no accusation that plaintiff acted on his impulse; reporting that he contemplated wrongful activity is nothing
Regarding other, more factual statements contained in the October series of releases by the News of which plaintiff complains, there was a failure to submit clear and convincing proof of the newspaper's knowledge of their falsity or probable falsity sufficient to establish actual malice. Thus, plaintiff has submitted no evidence to establish the News' knowledge of any falsity or even probable falsity of the statements that he was "brought on the carpet" by the Governor concerning his conduct of the lottery, that the previous inclusion of unsold tickets continued in the conduct of subsequent games despite plaintiff's contrary claims, or that the computer breakdown was caused by plaintiff's hasty attempt to eliminate unsold tickets from these drawings. It does no good for plaintiff to contend that if the News had actually conducted the painstaking and thorough investigation it claimed in the articles, it would have discovered the falsity of these statements, since a failure adequately to investigate does not itself establish malice (St. Amant v Thompson, 390 U.S. 727, 733). Plaintiff is also not aided by the recital of various uncivil remarks of the reporters personally directed to him, since in the absence of other proof of objective facts from which an awareness of falsity or probable falsity may be inferred, animus or hostility on the part of the press does not establish malice in the constitutional sense (Greenbelt Pub. Assn. v Bresler, supra, pp 10-11; Roche v Hearst Corp., 53 N.Y.2d 767, 769). Finally, on the malice issue, plaintiff contends that at the two October meetings with the News' staff, it was given information establishing the probable falsity of its accusations in the explanation by plaintiff and the published rules, regulations, and promotional materials of the lottery he furnished the reporters. However, a report of an audit of the lottery by the State Comptroller's office dated November 14, 1975, which was attached to the moving affidavits of the reporters, substantiates the News' position that plaintiff's explanation was insufficient to establish awareness of falsity. That report, issued shortly after the main series of News articles, confirmed the News'
The foregoing discussion disposes of the significant charges published in the Daily News upon which plaintiff's second through thirteenth causes of action were founded, and the oral accusations which formed the basis for his first cause of action in slander. To the extent that factual discrepancies were reported apart from those previously discussed, our examination of the articles reveals that they would not have been so material as to alter in any significant way the conclusions a reasonable person might have drawn from reading them, and, therefore, they are not actionable (see Rinaldi v Holt, Rinehart & Winston, supra, p 383).
In thus determining that summary judgment was appropriately granted with respect to plaintiff's first through thirteenth causes of action, we adopt the position taken in Yiamouyiannis v Consumers Union of the U. S. (619 F.2d 932, 940) that no special rule applies either favoring or opposing the granting of summary judgment in public official-libel cases and that such actions, for procedural purposes, are to be treated no differently from other actions (cf. Hutchinson v Proxmire, 443 U.S. 111, 120, n 9; Rinaldi v Viking Penguin, 52 N.Y.2d 422, 437-438). We also reject plaintiff's belated suggestion, advanced for the first time on appeal, that discretion should be exercised denying summary judgment pending his further resort to pretrial disclosure such as examinations before trial of the News' reporters and editors. In his answers to interrogatories he
We reach a different conclusion regarding the existence of a triable issue of fact as to certain statements in the article published March 14, 1976. A hiatus in coverage of the lottery of several months had taken place, during which plaintiff had resigned his position and the lottery had remained in suspension. The article, in discussing the events leading to the lottery's shutdown and the role of the News' investigation in bringing that about, states:
In our view, the damaging references specifically to plaintiff appearing elsewhere in the article, together with the extrinsic proof previously discussed showing the News' readership's identification of plaintiff as the perpetrator of the lottery's wrongful activities, are sufficient to create a triable issue of fact on whether the quoted excerpt from the March 14 article was directed against plaintiff (Rosenblatt v Baer, supra, pp 81-83). Moreover, "deliberately withholding prize money" and trying "to hide the scandal" are assertions of fact, not expressions of opinion, and are not accompanied by the inclusion of any other objective facts in the article to support them. Clearly they can be reasonably read as accusing someone of intentionally denying winners the prize money to which they were rightfully entitled, and then concealing that fact. The affidavits of plaintiff and members of his staff are amply sufficient to raise a triable issue on falsity. Like the charges of probable corruption in Rinaldi v Holt, Rinehart & Winston (supra), they can readily be understood by the average reader as meaning
Accordingly, Special Term should not have granted summary judgment dismissing plaintiff's fourteenth cause of action based upon the article of March 14, 1976.
The order should be modified, on the law, by reversing so much thereof as grants defendant's motion for summary judgment dismissing plaintiff's fourteenth cause of action,
Order modified, on the law, by reversing so much thereof as grants defendant's motion for summary judgment dismissing plaintiff's fourteenth cause of action, and motion denied with respect to said cause of action, and, as so modified, affirmed, without costs.