The opinion
Mercure, J.
(dissenting). Because it is our view that Supreme Court correctly concluded that plaintiff failed to satisfy his burden of proving "malice” by clear and convincing evi *195 dence (Sweeney v Prisoners’ Legal Servs., 146 AD2d 1, 6 , lv dismissed 74 NY2d 842 ), we would affirm the judgment dismissing the complaint.
A plaintiff satisfies the burden of establishing constitutional, or actual, malice by showing that "defendant in fact entertained serious doubts as to the truth of his [or her] publication” (St. Amant v Thompson, 390 US 727, 731 ; accord, Liberman v Gelstein, 80 NY2d 429, 438 ) or, stated another way, was "highly aware that it [was] probably false” (Liberman v Gelstein, supra, at 438). Because mere negligence does not establish constitutional malice (see, St. Amant v Thompson, supra), neither the failure to investigate nor refusal to permit prepublication review by the subject of the article will of itself suffice to create a factual issue (see, Beckley Newspapers v Hanks, 389 US 81 ; James v Gannett Co., 40 NY2d 415, 423-424 ). Under the common-law definition, "a triable issue is raised only if a jury could reasonably conclude that 'malice was the one and only cause for the publication’ ” (Liberman v Gelstein, supra, at 439, quoting Stukuls v State of New York, 42 NY2d 272, 282 ).
In this case, the proof established, at most, that defendants were negligent in failing to take available steps to verify Glenn Mays’ accusations concerning the incident of July 17, 1984 and the results of the investigation of their paralegal, Beverly Abplanalp-Gaede. This failure is primarily attributable to Mays’ October 1984 decision not to pursue his claim against plaintiff and does not evidence any malice on defendants’ part. When, more than two years later, defendants amassed the statistical information on physical abuse by correction officers, they conceivably could have carefully reviewed each file and taken any steps necessary to verify the truth of the allegations contained therein, but the fact is that defendants were merely assembling a list of inmate complaints and not established incidents of brutality. As such, as candidly acknowledged by defendant Neil H. Golder, the truth or falsity of the individual reports was irrelevant. Further, the fact that Mays’ complaint of physical abuse by plaintiff and 9 or 10 other correction officers was but one of 38 incidents set forth on the computer printout, and the least proximate in time to the preparation of the report, belies any suggestion that defendants harbored any ill will against plaintiff or that malice motivated his inclusion on the list. In fact, it is uncontroverted that none of the defendants even knew plaintiff. In sum, it is our view that the proof adduced at trial *196 established no more than mere negligence and that the ambiguous circumstances cited by the majority for their contrary conclusion do not even approach the required standard of clear and convincing evidence.
White and Weiss, JJ., concur with Cardona, P. J.; Mercure and Casey, JJ., dissent in a separate opinion by Mercure, J.
Ordered that the order and judgment is reversed, on the law and the facts, with costs to plaintiff, defendants’ cross motion denied, plaintiff’s motion granted, the verdict is reinstated as to liability and the matter is remitted to the Supreme Court for a new trial on the issue of damages only, unless, within 20 days after service of a copy of the order herein, plaintiff stipulates to reduce the verdict for compensatory damages to $35,000.