Court Tosses Judge's Suit Against NY Daily News

     (CN) - Two columns in the New York Daily News which implied that a Brooklyn judge wrongly presided over a $20 million real estate case despite a conflict of interest contained significant errors but did constitute defamation, a state appellate court ruled.
     The ruling by the Appellate Division of the New York Supreme Court upheld the dismissal of a suit in which Kings County Supreme Court Justice Larry Martin sought $10 million in damages from the paper and one of its columnists, Errol Louis.
     The first of the columns appeared in the Daily News on January 28, 2007 under the heading "Corruption." It went on to describe a "sprawling $20 million dispute between two Brooklyn real estate families" and to comment on what Louis described as the "complicated world of judicial corruption in Brooklyn."
     In relation to Justice Martin, Justice David Saxe wrote, Louis's column inaccurately reported that the judge was presiding over the case despite the fact a lawyer representing one of the parties was "simultaneously" representing him.
     A second column about the case, entitled "Weed out bad judges," published February 8, 2007, focused on two other Brooklyn judges who were either kicked off the bench or sent to prison. But the column segued into a discussion of "the case of Larry Martin," suggesting that he, too, deserved a similar fate.
     Although the columns accused the attorney, Jerome Karp, not the judge, of trying to "rig" the real estate case, Justice Martin said they clearly implied that he was involved in the alleged case-rigging. He also noted that in the column declaring he was guilty of conflict of interest, the columnist failed to mention that Karp's rile in the case was limited to representing a party who had filed a motion to intervene that was quickly withdrawn.
     The columns also failed to clarify that the Justice Martin's role in the real estate dispute was limited to his handling of a peripherally related foreclosure proceeding. He was not handling the litigation in which the parties were seeking a global settlement of their $20 million dispute.
     "As a result of this missing information and Louis's careless reporting, the columns created a false impression that Justice Martin was mixed up in corruption," Saxe wrote.
     The errors were "more than technical inaccuracies. They lie at the heart of the defamation by which Louis conveyed to the reader the accusation that Justice Martin, whom Louis characterized as a corrupt judge, president over the global litigation ... and that he knowingly did so despite a disabling conflict of interest," he added.
     Despite this, Saxe said, there was no evidence that Louis or his editors knew some of the errors and proceeded to publish the columns anyway. Thus, the columns did not amount to actionable defamation under the "actual malice" standard that applies to public figures, such as Justice Martin, the appellate panel ruled.
     "The only issue here is whether Justice Martin presented evidence sufficient to create an issue of fact as to whether he could prove, by clear and convincing evidence, that Louis knew that Justice Martin's conduct did not involve a conflict of interest. This he failed to do," Saxe wrote.
     Louis testified that he based his assertions of a conflict of interest on a letter in which the party that sought to intervene in the real estate case authorized Karp to attempt to negotiate a settlement on his behalf. The columnist's conclusions were wrong but were "not entirely unreasonable," Saxe noted.
     Thus, the columnist's testimony "fails to rise to the level of establishing that he 'entertained serious doubts as to the truth of his publication, or acted with a high degree of awareness of [its] probable falsity'.... Rather, Louis's sometimes inaccurate reporting about the ... lawsuit and Justice Martin's conduct was simply sloppy and careless," the judge wrote.
     The appellate panel also rejected Justice Martin's claim that the Daily News republished the defamatory columns when it restored them in the paper's online database after they were inadvertently deleted during a changeover of the system's content management software.
     "The columns were not modified in any substantial way, and their restoration was, as characterized by the motion court, akin to a delayed circulation of the original," Saxe wrote.
     Moreover, the restoration was "not geared toward reaching a new audience," he said. As a result, Martin's claim based on republication is time-barred, Saxe concluded.