
    James C. Sheridan, Respondent, v. James J. Crisona, Appellant.
    Argued January 8, 1964;
    decided April 2, 1964.
    
      
      Stephen P. Duggan, Jr., Thomas W. Evans and E. Douglas Hamilton for appellant.
    I. The second certified question should be answered in the affirmative. This record establishes, as a matter of law, that the alleged defamatory statements were absolutely privileged in that the alleged defamatory statements were contained in a fair and true report of an official proceeding. (Kelley v. Hearst Corp., 2 A D 2d 480; Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 260 N. Y. 106; Baumann v. Newspaper Enterprises, 270 App. Div. 825; Bridgwood v. Newspaper PM, 276 App. Div. 858; Mach, Miller Candle Co. v. Macmillan Co., 239 App. Div. 738, 266 N. Y. 489; Abrey v. New York World-Tel. Corp., 7 Misc 2d 413; Kramer v. News Syndicate Co., 260 App. Div. 17, 284 N. Y. 557; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245; Bradford v. Pette, 204 Misc. 308.) II. The second certified question should be answered in the affirmative on the further independent ground that the alleged defamatory statements were made by appellant in various official capacities. Appellant possessed an absolute privilege to make them. (Spalding v. Vilas, 161 U. S. 483; Hastings v. Lusk, 22 Wend. 410; Hyman v. Press Pub. Co., 199 App. Div. 609; Cheatum v. Wehle, 5 N Y 2d 585; Gregoire v. Biddle, 177 F. 2d 579; Barr v. Matteo, 360 U. S. 564; Bolton v. Walker, 197 Mich, 699; Collier v. Postum Cereal Co., 150 App. Div. 169; Bingham v. Gaynor, 203 N. Y. 27; Mellon v. Brewer, 18 F. 2d 168; Glass v. Ickes, 117 F. 2d 273.) III. The third certified question should be answer in the affirmative. This record establish.es, as a matter of law, that the alleged defamatory statements were at least qualifiedly privileged so as to render defendant immune from liability. (Hemmens v. Nelson, 138 N. Y. 517; De Lury v. Wurf, 35 Misc 2d 593, 17 A D 2d 917; O’Meara Co. v. National Park Bank of N. Y., 239 N. Y. 386; Bank for Sav. v. Bellim Constr. Co., 285 N. Y. 708; Shapiro v. Health Ins. Plan of Greater N. Y., 7 N Y 2d 56; Matter of City of New York [Throgs Neck Expressway—Marshall], 8 A D 2d 365.) IV. The first certified question should be answered in the negative. The order of the court below was not properly made and appellant’s motion for summary judgment should be granted. (Howard v. Lyons, 360 U. S. 593; Coyne v. O’Connor, 204 Misc. 465; Tenney v. Brandhove, 341 U. S. 367.)
    
      Howard P. Fritz and Thomas J. Donohue, Jr., for respondent.
    I. The first certified question should be answered in the affirmative. The order of the Appellate Division was properly made. (Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395.) II. The second certified question should be answered in the negative. This record does not establish, as a matter of law, that the defamatory statements were absolutely privileged so as to render appellant immune from liability. (Rouse v. Olean Times Herald Corp., 30 Misc 2d 281; Vosbury v. Utica Daily Press Co., 105 Misc. 134; Josephs v. News Syndicate Co., 5 Misc 2d 184; Sanford v. Bennett, 24 N. Y. 20; Bridgwood v. Newspaper PM, 194 Misc. 750; Baumann v. Newspaper Enterprises, 270 App. Div. 825; Bradford v. Pette, 204 Misc. 308; Barr v. Matteo, 360 U. S. 564; Cheatum v. Wehle, 5 N Y 2d 585; Murray v. Brancato, 290 N. Y. 52; Goodyear Aluminum Prods, v. State of New York, 21 Misc 2d 725.) III. The third certified question should be answered in the negative. This record does not establish, as a matter of law, that the alleged defámatory statements were qualifiedly privileged so as to render appellant immune from liability. (Andrews v. Gardiner, 224 N. Y. 440; Shapiro v. Health Ins. Plan of Greater N. Y., 7 N Y 2d 56; Lamb v. Cheney & Son, 227 N. Y. 418; Stevenson v. News Syndicate Co., 302 N. Y. 81; Pecue v. West, 233 N. Y. 316; Eisenberg v. Reasenberg, 252 N. Y. 490; Garriga v, Townsend, 285 App. Div. 199; Wiener v. Long Is. Daily Press Pub. Co., 286 App. Div. 1108; Smith v. Matthews, 152 N. Y. 152: Foley v. Press Pub. Co., 226 App. Div. 535; Hoeppner v. Dunkirk Print. Co., 254 N. Y. 95; Sherman v. International Pubs., 214 App. Div. 437; Shenkman v. O’Malley, 2 AD 2d567.)
   Scileppi, J.

On or about March 5,1958, defendant, then serving as President of the Borough of Queens and as a member of the Board of Estimate of the City of New York, submitted a report to the Mayor, copies of which eventually also were delivered to other members of the board, concerning the city’s acquisition by condemnation of real property located on the Bockaway Peninsula in Queens, known as Edgemere Park. The report, it appears, resulted as a consequence of a general discussion of the subject of condemnation practices and procedures at a meeting of the board on February 13,1958.

Defendant’s report, heretofore referred to, embodied the following excerpt:

“ Nor is it possible to believe that the City’s appraiser could have reached the conclusions set forth in his appraisal report except on the basis of misinformation, ignorance, distortion and incompetence. * * * Even a perfunctory, superficial investigation of the conclusions reached by the City’s appraiser should have alerted the office of the Corporation Counsel to the worthlessness of this appraiser’s report.
“As President of the Borough of Queens, I respectfully request that this appraiser, Mr. James C. Sheridan, be permanently removed from the panel of appraisers employed by the City of New York ’\

Since the entire subject of condemnation was commanding public interest and concern during this time, various newspapers were seeking a release of the report. Finally, on June 13, 1958, some three months after the report had been submitted to the Mayor, defendant made available a copy of said report for inspection by newspaper reporters. Thereafter, several articles incorporating the quoted language were published in various newspapers.

This libel action is predicated on the publication of the quoted words, alleged to be defamatory, in both the report to the Mayor and in newspapers. Defendant in substance asserted the affirmative defenses of absolute and qualified privilege.

Following the joinder of issue, defendant moved for summary judgment. Special Term denied the motion on the ground that the pleadings and affidavits raised issues of fact. Upon appeal, the Appellate Division affirmed.

The initial question is whether, under the circumstances here, defendant is to be accorded an absolute privilege. The solution in that regard is suggested in Cheatum v. Wehle (5 N Y 2d 585), wherein the court stated (pp. 592-593): “ Under Federal decisions, it has long been held that an executive official is absolutely privileged to publish false and defamatory matter of another in the exercise of his executive function if the matter has some relation to the executive proceeding in which the official is acting (3 Restatement, Torts, § 591). * * * The doctrine of immunity based on official privilege is recognized in this State, being based upon ‘consideration of public policy and to secure the unembarrassed and efficient administration of justice and public affairs’ (Hemmens v. Nelson, 138 N. Y. 517, 523), and has been held to include ‘ official reports and communications by or to the executive head of a department of the government’ (Hyman v. Press Pub. Co. 199 App. Div. 609, 611). The desirability of such a policy is easily recognized as essential in the conduct of official business. For instance, section 164 of the Executive Law requires each department head to make an annual report to the Governor and to the Legislature. It is quite important that .the executive so reporting should be free to make such report without fear of reprisal by civil suit for damages. ¡Such an official report is based on facts and figures which become a public document on a matter of public concern upon which the Governor and the Legislature may rely in proposing budgets and adopting ameliorative legislation. ”

The Cheatum case was obviously concerned with State executive officials. However, the same general considerations of public policy, which demand absolute privilege for .what is said or written by said executives in the discharge of official duty, must certainly apply to a municipal executive such as a Borough President who is charged with substantial responsibilities, not only in administering the public affairs of more than a million people (see New York City Charter, §§ 81-83,196, as in effect in 1958), but also in performing quasi-legislative functions as a member of the Board of Estimate (see New York City Charter, §§ 61-71, as in effect in 1958). Thus a Borough President acting within the scope of his official powers must be accorded the protection of absolute privilege (see Ann. 40 ALR 2d 941; Ann. 132 A. L. R. 1340; Prosser, Torts [2d ed., 1955], § 95, pp. 612-613; see, also, Manceri v. City of New York, 12 A D 2d 895; Lent v. Underhill, 54 App. Div. 609; Cook v. Hill, 3 Sandf. [5 N. Y. Super. Ct.] 341, 349-350; Newfield v. Copperman, 15 Abb. Prac. [N. S.] 360, affd. 10 Jones &Sp. [42 N. Y. Super. Ct.] 302; Hastings v. Lusk, 22 Wend. 410,417; Thorn v. Blanchard, 5 Johns. 508, 530-532; Galligan v. Kelly, 31 N. Y. S. 561; Barr v. Matteo, 360 U. S. 564, 572-578; Bolton v. Walker, 197 Mich. 699; cf. New York Times Co. v. Sullivan, 376 U. S. 254.)

The inquiry now must be directed to whether the defendant’s report here involved was made in the course of the performance of some function connected with the office of Borough President.

Section 384 of the New York City Charter .(as in effect in 1958) granted the Board of Estimate ¡broad powers with regard to condemnation in the City of New York. It follows, then, that defendant was acting within the scope of his official duties when he investigated a specific condemnation proceeding concerning real property in his borough and made a report which included pertinent and relevant statements concerning plaintiff (see Ann. 40 ALR 2d 941, 944, supra; Bolton v. Walker, supra).

Finally, we are of the opinion that the release of the report by defendant to the press some three months after it had been submitted to the Mayor was within the scope of the absolute privilege. The report certainly concerned a matter of public concern, and the defendant was obligated by section 893 of the New York City Charter (as in effect in 1958) to make available to the public on demand any such document kept in his office.

In Bradford v. Pette (204 Misc. 308) Mr. Justice Hill stated (p.323):

It appears * * * that the office of the clerk of Special Term, Part I, of this court is in the charge of a Special Deputy to the County Clerk of the County of Queens (Judiciary Law, § 156); that after a determination is processed in his office, * * * the motion papers and the original opinion thereon are filed in his office to await the submission of proposed orders, and that then the original papers and signed opinion are subject to perusal and copy by the public.

Had an employee of .the New York Law Journal or anyone else copied the defendant’s opinion from the original filed with the clerk, its publication would * * * be privileged as to * * # vie defendant.” (See, also, Murray v. Brancato, 290 N. Y. 52, 56-57 [wherein the court stated that Judges procuring publication of opinions in the Official Reports are entitled to judicial privilege, since such publication is directed by statute] ; cf. Bingham v. Gaynor, 203 N. Y. 27; Barr v. Matteo, 360 U. S. 564, supra; Howard v. Lyons, 360 U. S. 593; Glass v. Ickes, 117 F. 2d 273, cert. den. 311 U. S. 718; Mellon v. Brewer, 18 F. 2d 168, 172, cert. den. 275 U. S. 530.)

The absolute privilege to which defendant is entitled is a complete bar to this action in libel, regardless of whether the publication was motivated by malice or that the matter so published was false and defamatory. Assuming, however, that only a qualified privilege obtains here, there is insufficient evidence from which a jury might infer malice (see Shapiro v. Health Ins. Plan of Greater N. Y., 7 N Y 2d 56). Certainly plaintiff’s bare assertion that at a meeting with defendant said defendant stated that plaintiff would be “ hurt ” if he did not co-operate in the investigation is not enough. Moreover, plaintiff’s unsupported allegation that defendant’s motive in making the report was a political feud in which he was engaged with a third party is, standing alone, without probative significance. The mere fact that the third party may have been mentioned somewhat unfavorably in the report does not necessarily support an inference that a feud existed, just as in Shapiro an unfavorable report did not support an inference of a pre-existing feud. Finally, defendant’s statement that his report did not represent an exhaustive and complete study cannot be equated an admission that the report was inaccurate or false.

It was error, then, for the courts below to have denied summary judgment here.

The order appealed from should be reversed, and defendant’s motion for summary judgment dismissing the complaint granted. The first certified question is answered in the negative, and the second and third certified questions in the affirmative.

Dye, J.

(dissenting). In this action for libel the defendant interposed an answer setting up seven separate and complete defenses and one partial defense which the courts below have unanimously agreed give rise to questions of fact which should be resolved at a trial. We think so too. However, this court is about to grant summary judgment dismissing the plaintiff’s complaint on the ground that, as matter of law, the defendant is immune from liability since the alleged defamatory statements were absolutely privileged. We cannot agree.

The defendant at the time was President of the Borough of Queens. The alleged defamatory statements were contained in a letter written by him to the Mayor of the city respecting an investigation he had made into a condemnation proceeding conducted by the City of New York for .the taking of certain land located in the borough for a public purpose. Although his authority to conduct such an investigation is indeed dubious (New York City Charter, § 82), such issue is deemed of no moment since under the majority view the privilege of absolute immunity is available as a complete defense. Thus, by a decisional law this court is extending an absolute immunity to minor executive officials from liability for defamatory statements made in the course of their official duties, a privilege never heretofore enjoyed by that group of officials. Until now, such privilege has been available through constitutional sources only to the members of the State Legislature (N. Y. Const., art. Ill, § 11) which privilege parallels a similar immunity enjoyed by Federal lawmakers (U. S. Const., art. I, § 6, cl. 1), a limitation traceable to the English Bill of Rights of 1688 (see Gray, Private Wrongs of Public Servants, 47 Cal. L. Rev. 303 [1959]). The absolute immunity which is enjoyed by members of the State Judiciary in respect to opinions delivered to the New York State Reporter is derived from statute (Judiciary Law, §§ 431-432) and does not extend ,to those delivered by a Judge to an unofficial publishing company as to which defamatory statements contained therein are only qualifiedly privileged (Murray v. Brancato, 290 N. Y. 52). In such posture the omission of a constitutional or statutory provision relating to lower ranking executive officials may properly be viewed as a tacit rejection by the draftsmen of the Constitution and by our State legislators of the theory that general considerations of public policy ” compel the adoption of the absolute immunity rule. From early times the courts have consistently rejected such a policy. In Hemmens v. Nelson (138 N. Y. 517), the head of a New York State School for the Deaf was sued for defamation. It was there argued that, as an executive official of the 'State, he was entitled to an absolute immunity. We rejected such contention and ruled that only a qualified privilege existed, which would be defeated upon a showing of malice. Though we included in Cheatum v. Wehle (5 N Y 2d 585, 592-593) a brief discussion of the concept of absolute executive immunity, our holding nonetheless was that Wehle, then New York'State Conservation Commissioner, could claim no executive privilege whatsoever because his statements contained in an after-dinner speech were not made in the “ due course ” of his official duties. Certainly, the fact that this court has never granted an absolute privilege to an executive on the municipal level does not prevent us from so doing at this time but it does not follow that we should. It has been said that both high ranking and low ranking executive officials should be granted an absolute immunity,so that they are “ free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” (Barr v. Matteo, 360 U. S. 564, 571.) In that case, which is relied on by a majority of this court, -the court was concerning itself with the immunity of Federal Government officials and decided that such officials had an absolute immunity from liability for defamatory statements made in the course of their official duties. However, it does not follow that the courts of this State are bound to follow such policy in determining what—if any—immunity is to be afforded an official of a municipal subdivision of the State of New York. We do not subscribe to the notion that a denial of absolute immunity from libel liability will “ dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” (Cf. Gregoire v. Biddle, 177 F. 2d 579, 581.) Our experience has been to the contrary. Officials of whatever rank and grade need have no fear of incurring liability for acts based on truth. Indeed, our public servants are more likely to ibe responsive to the wishes of the public if they are required to account for their malicious falsehoods. As one writer has perceptively observed, , When an official has taken advantage of Ms position to appeal to public opinion on a disputed matter, it appears that the public need for accurate information will be furthered by permitting a judicial determination of the presence of malice and the truth of the statement. ” (Comment, The Supreme Court, 1958 Term, 73 Harv. L. Rev. 84, 240 [1959]; and see, generally, Handler and Klein, The Defense of Privilege in Defamation Suits against Government Executive Officials, 74 Harv. L. Rev. 44 [1960] ; Jaffe, Suits against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. [1963]; Suits against Governments and Officers: Damage Actions, 77 Harv. L. Rev. 209 [1963]; Veeder, Absolute Immunity in Defamation: Legislative and Executive Proceedings, 10 Col. L. Rev. 131 [1910], and Davis, Administrative Officers’ Tort Liability, 55 Mich.L. Rev. 201 [1956].)

As an executive officer, defendant herein had a qualified privilege to make defamatory statements about the plaintiff herein (Hemmens v. Nelson, supra) and, as a citizen, defendant had a qualified privilege to make fair comment about the plaintiff who was occupying a public position (Toomey v. Farley, 2 N Y 2d 71; Hall v. Binghamton Press Co., 296 N. Y. 714; New York Times Co. v. Sullivan, 376 U. S. 254). But as we know, malice destroys a qualified privilege (Andrews v. Gardiner, 224 N. Y. 440, 446). This case comes to us in a different posture than Shapiro v. Health Ins. Plan of Greater N. Y. (7 N Y 2d 56) where plaintiff failed to present in his complaint or affidavits any evidentiary facts from which a jury could infer malice.

In this complaint and its supporting affidavits, sufficient evidentiary facts have been presented to raise a question for the jury as to whether defendant acted with malice in transmitting to the Mayor a commentary containing the statements complained of; for instance, it appears that, at a meeting with defendant some four months prior to the publication of the defamatory letter, the defendant demanded that plaintiff admit that he had made two appraisals of a particular piece of realty and, when plaintiff refused to do so, defendant became angry and threatened, “ You will be hurt if you don’t cooperate. ” It is also averred that defendant began his investigation of the condemnation proceedings in connection with a political feud with the incumbent of the office of Corporation Counsel and that plaintiff was “ used as the patsy in the business.” That defendant and the Corporation Counsel were in fact feuding may be inferred from defendant’s letter itself which refers to the Corporation Counsel’s office in the following manner: “It is incredible that a law office employing 300 or more lawyers could be guilty of such gross negligence as the facts in this case clearly demonstrate. ” Also indicative of defendant’s malice is the assertion by plaintiff that defendant’s false statements about plaintiff were recklessly made and that defendant, through the exercise of reasonable diligence, could have ascertained that the statements he uttered were untrue. Defendant’s own admission in his report that his report ‘ ‘ does not represent an exhaustive and complete investigation of the Edgemere Park matter and does not even attempt an overall study of condemnation procedures and practices ” gives support to the inference that defendant acted recklessly and maliciously, at least a jury might so conclude.

The order of the Appellate Division should be affirmed, with costs. The first certified question should be answered in the affirmative and the last two certified questions should be answered in the negative.

Opinion by Judge Scileppi in which Chief Judge Desmond and Judges Fuld and Bergan concur; Judge Van Voorhis concurs in the result in the following memorandum: I agree with Judge Dye that qualified privilege rather than absolute privilege is the rule to be applied, but consider that the record discloses an absence of evidence of actual malice upon the part of the defendant. Therefore, I vote to dismiss the complaint. Judge Dye dissents and votes to affirm in a separate opinion; Judge Btjbke taking no part.

Order reversed, with costs in this court and in the Appellate Division, and the matter remitted for further proceedings in accordance with the opinion herein. First question certified answered in the negative; second and third questions certified answered in the affirmative. 
      
      . It is without significance that defendant may have proceeded on his own initiative rather than at the direction of the Mayor (see Barr v. Matteo, supra).
      
     