explaining that “a triable issue of common-law malice is raised only if a reasonable jury could find that the speaker was solely motivated by a desire to injure plaintiff, and that there must be some evidence that the animus was ‘the one and only cause for the publication’” (quoting Stukuls v. New York, 42 N.Y.2d 272, 282 (1977))
How later courts described this case
- explaining that “a triable issue of common-law malice is raised only if a reasonable jury could find that the speaker was solely motivated by a desire to injure plaintiff, and that there must be some evidence that the animus was ‘the one and only cause for the publication’” (quoting Stukuls v. New York, 42 N.Y.2d 272, 282 (1977))
- affirming a $100,000 award for past 14 mental anguish and emotional harm and reducing an award for future mental anguish and 15 emotional harm from $500,000 to $300,000 in a libel case where defendant published a picture 16 of the plaintiff in a newspaper that was altered to make her look like an inmate, causing 17 depression, anxiety, and weight gain
- affirming a $100,000 award for past men tal anguish and emotional harm and reducing an award for future mental anguish and emotional harm from $500,000 to $300,000 in a libel case where defendant published a picture of the plaintiff in a newspaper that was altered to make her look like an inmate, causing depression, anxiety, and weight gain
- “[A] triable issue of common-law malice is raised only if a reasonable jury could find that the speaker was solely motivated by a desire to injure plaintiff, and … there must be some evidence that the animus was the one and only cause for the publication.”
Written by the judges who cited it.
The opinion
Marlow, J. (dissenting).
I respectfully dissent.
This action is for libel. It arises out of defendant newspaper’s unauthorized use of a photograph of plaintiff. For purposes of illustrating an article about the negative consequences to society following a mother’s completion of a term in prison, *258 defendant’s employees graphically altered the photograph to make it appear as though plaintiff were wearing a prison uniform, when, in the original photo, she was not. On a prior appeal from the denial of defendant’s motion for summary judgment, this Court held that whether defendant’s depiction of plaintiff in prison garb fairly implied that she was a criminal, and was therefore defamatory, and whether defendant had acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties, were issues of fact to be decided by the jury ( 278 AD2d 81 [2000]). The record shows that both of these issues were fairly litigated and fairly presented to the jury. The record also amply supports findings: (1) that defendant’s depiction of plaintiff clearly and fairly implied, falsely, that she was a convicted criminal, and (2) that defendant was guilty of a gross departure from the standards of responsible journalism when, without plaintiff’s permission, it removed her picture from its files and admittedly altered it to show her as a convict, utterly without any concern for its truthfulness.
With regard to the issue of damages, it is incumbent upon the court to examine whether the jury award “deviates materially from what would be reasonable compensation” (CPLR 5501 [c]) and, in doing so, we must look to awards approved in similar cases (Donlon v City of New York, 284 AD2d 13, 14-15 [2001]; Leon v J & M Peppe Realty Corp., 190 AD2d 400, 416 [1993]; Gasperini v Center for Humanities, Inc., 518 US 415, 425 [1996]). Applying this standard, I find that the $40,000 award for harm to personal reputation, in view of plaintiff’s education and professional attainments, and the $100,000 award for past emotional distress and $500,000 award for future emotional distress are supported by the medical and other evidence and do not deviate materially from what is reasonable compensation.
Punitive damages may be awarded to punish a defendant who has acted maliciously and to discourage others from acting the same way. It is well settled that in order to recover punitive damages, a plaintiff must establish that a defendant’s acts were motivated by common-law malice (Prozeralik v Capital Cities Communications, 82 NY2d 466, 479-480 [1993]). 1 In order to determine whether a defendant acted maliciously, the *259 factfinder must determine whether the statement was “made with deliberate intent to injure or made out of hatred, ill will, or spite or made with wilful, wanton or reckless disregard of another’s rights” (PJI3d 3:30 [2003] [emphasis added]; see also Prozeralik, 82 NY2d at 479-480 , quoting Vassiliades v Garfinckel’s, Brooks Bros., 492 A2d 580, 593 [DC 1985] [underlying purpose of punitive damages is to “punish a person for outrageous conduct which is malicious, wanton, reckless, or in willful disregard for another’s rights” (emphasis added)]).* 2
Defendant argues, not that punitive damages can never be awarded in defamation cases, but rather that the court’s charge to the jury on this issue was erroneous as a matter of law and that the evidence adduced at trial does not support a punitive damages award. Alternatively, defendant maintains that the punitive damages award is excessive.
Specifically, defendant claims that the court should have charged the jury that plaintiff had to prove that defendant acted with malice by clear and convincing evidence in order to recover punitive damages. However, the judge’s charge to the jury closely tracked the language of the pattern jury instruction for punitive damages in defamation cases (see PJI3d 3:30 [2003]), language which I find legally proper. 3
In any event, upon my review of the record, I find that whether plaintiff’s burden of proof is by a preponderance of the evidence (see Corrigan v Bobbs-Merrill Co., 228 NY 58, 66-67 [1920]; Greenbaum v Svenska Handelsbanken, N.Y., 979 F Supp 973, 975-982 [1997]) or by clear and convincing evidence (see *260 Camillo v Geer, 185 AD2d 192, 194 [1992]), plaintiff, in my judgment, unquestionably satisfied the more exacting clear and convincing evidentiary standard. Indeed, plaintiff is a well-educated, professionally successful woman, who is also a single mother. Defendant is a religious publication described by its editor-in-chief as the “official organ of the Nation of Islam.” Defendant, a publication which is designed to provide religious teaching and guidance primarily to African-Americans in accordance with the principles of Islam, grossly misrepresented plaintiff as a prison convict.
In June 1997, defendant newspaper released an article entitled “Mothers in Prison, Children in Crisis.” The front page of the publication showed plaintiff holding her son and smiling. The jump pages of the article, in order to illustrate the front page headline, contained the same photograph. However, defendant’s employees deliberately altered plaintiff’s photograph, deleted her son from the picture, graphically removed her smile, and superimposed prison clothing on her image.
The photograph of plaintiff and her son had been taken in October 1996 at an event called “The Day of Atonement” by a photographer who periodically provided pictures to defendant. Defendant acquired plaintiff’s photograph and placed it in its “Photo File,” where it remained until May 1997, when defendant’s editor-in-chief requested his graphic artist to find pictures to illustrate a story on female prison inmates and their children. The graphic artist selected and altered plaintiff’s photograph. Defendant’s editor-in-chief admitted that he did not know plaintiff, and the record is barren of any evidence he knew anything at all about her. He further admitted he did not obtain her permission to use the photograph in connection with the article. Moreover, defendant’s editor-in-chief admitted that no one from the publication made any attempt whatsoever to identify plaintiff or the other women depicted in the article prior to publication. Thus, utterly without the slightest concern for plaintiffs right to her flawless reputation, defendant falsely labeled her a convicted criminal in prison.
I therefore most respectfully disagree with my colleagues in the majority, and I find that defendant did possess the requisite “mental state in relation to the plaintiff” (Prozeralik, 82 NY2d at 480 ) to justify an award of punitive damages by its admitted and blatant disregard in failing to make even the slightest effort to ascertain whether its deliberately altered depiction of plaintiff was accurate. I believe, most respectfully, that the majority’s reliance on Stukuls v State of New York ( 42 NY2d *261 272 [1977]); Present v Avon Prods. ( 253 AD2d 183 [1999], lv dismissed 93 NY2d 1032 [1999]); Thanasoulis v National Assn. for Specialty Foods Trade ( 226 AD2d 227 [1996]); Ackerman v Bechhoefer ( 270 AD2d 878 [2000]); Grier v Johnson ( 232 AD2d 846 [1996]); and Weir v Equifax Servs. ( 210 AD2d 944 [1994]) is misplaced as these cases all deal with the issue of overcoming the defense of privilege by establishing common-law malice. None of them deals with the issue of punitive damages.
Moreover, defendant believes that the nature of the publication did not require any apology. Instead, defendant claims that the “clarification” it published prior to this lawsuit was adequate to explain that the use of plaintiffs likeness portraying her as a convict conspicuously clothed in prison attire was only for illustration purposes and not intended to imply that she was a convict or incarcerated. 4 Indeed, the so-called clarification neither effectively explains defendant’s wrongdoing nor appropriately apologizes for flagrantly victimizing this plaintiff. Remarkably, defendant continued to insist, even throughout oral argument, that there is no evidence that the article and accompanying, egregiously misleading photographs are defamatory.
Based on these particular facts and circumstances, I find that the evidence fully supports the jury’s punitive damages award.
Motion seeking leave to strike reply brief and for other related relief denied.
Saxe and Friedman, JJ., concur with Nardelli, J.P.; Rosenberger and Marlow, JJ., dissent in a separate opinion by Marlow, J.
Judgment, Supreme Court, New York County, entered June 22, 2001, modified, on the law and the facts, to vacate the award for future and punitive damages, and the matter remanded for a new trial on the issue of future damages only, and otherwise affirmed, without costs, unless plaintiff, within 20 days of the service of a copy of this order, stipulates to reduce the award for future damages to the principal amount of $300,000, and to the entry of an amended judgment in accordance therewith. Motion seeking leave to strike reply brief and for other related relief denied.
. We note that plaintiff satisfies this burden even under the “actual malice” standard defined in New York Times Co. v Sullivan ( 376 US 254 [1964]; see Liberman v Gelstein, 80 NY2d 429, 438 [1992] [under New York *259 Times malice standard, plaintiff must demonstrate that statements were made with a high degree of awareness of their probable falsity]).
. As explained by Judge Oshrin in Doe v Merck & Co. (30 Med L Rptr 1833, 1834 [Sup Ct, Suffolk County, May 30, 2002]):
“The nature of the conduct which will justify an award of punitive damages has been variously described as conduct having a high degree of moral culpability [citations omitted]; or conduct activated by an evil and reprehensible motive which manifests a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard [citations omitted]; or actions which constitute gross recklessness or intentional wanton or malicious conduct [citations omitted]; or actions which constitute willful or wanton negligence or recklessness [citations omitted]; or conduct which is grossly negligent and reckless [citations omitted]; or conduct which is so flagrant as to transcend mere carelessness [citations omitted]
. This charge does not specify the evidentiary standard for proving entitlement to punitive damages. In relevant part, the charge states that “[t]he burden of proving that defendant acted with malice is on the plaintiff.” (Id.)
. Even the clarification itself contained an error as it referred the readers to the wrong edition of the paper. The article appeared in volume 16, number 31; however, the clarification referred to volume 16, number 32.