Citations
- 84 A.D.2d 226
Full opinion text
OPINION OF THE COURT
Titone, J.
In 1979 the Newburgh City Council was considering a reorganization of the city’s police department. Debate was focused on the question of whether the city should continue with the existing appointed commissioner system or return to a civil service police chief structure. On July 19, 1979 the Times Herald Record voiced the opinion that the commissioner system should be retained. To support his argument the editor commented on past events and past accusations leading to the installation of the commissioner system.
“The department was in a shambles in 1972 after 18 officers, including Chief Humbert Capelli, were indicted on charges of burglary, planting of evidence and other misdeeds.
“We said at the time, and we still believe, that the entire department was under a cloud. It is inconceivable to us that so much misconduct could have taken place without the guilty knowledge of the unindicted members of the department. If so, they all were accessories after the fact, if not before and during.”
Within a month of publication, the owner of the Times Herald Record and certain individuals connected with the paper were sued for libel. The action was instituted by 27 present members of the police force who were among the group that had not been indicted in 1972.
In a preliminary conflict generated by the service of a second set of interrogatories by a police officer other than the one who served the first set, both the officer who served the second set (plaintiff), and the media defendants moved for summary judgment. The cross motions were denied and the parties appeal.
In our opinion, Justice Kelly’s determination was proper. Discovery is not yet complete and the necessary factual clarification of the major issues has not occurred. Therefore we affirm, without prejudice to renewal when the discovery has been completed.
We are forced to go beyond the decision of Special Term, however, because the posture of the case on appeal has changed. The newspaper has raised certain contentions that were not argued at Special Term or were argued in a different form. Specifically, the paper now challenges the reference in the editorial comments to the plaintiff and asserts that the comments are protected by the new opinion privilege. The appealing police officer, while noting the paper’s failure to articulate these claims at Special Term, has responded to them. We have chosen to make the necessary determination. The issues are central to all 27 cases and have the potential to terminate the litigation or to refocus the remaining discovery.
REFERENCE TO THE INDIVIDUAL PLAINTIFF IN THE CONTEXT OF GROUP DEFAMATION
The “of and concerning” element in defamation actions requires that the allegedly defamatory comment refer to the plaintiff (