Corr v. Ottaway Newspapers-Radio Inc.

In an action to recover damages for libel, defendants other than John Weld appeal, as limited by their 'brief, from so much of an order of the Supreme Court, Orange County, dated February 14, 1967, as denied their motion insofar as it was (1) to dismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211 (subd. [a], par. 7), and (2) to preclude plaintiff from giving evidence as to items in appellants’ demand for a bill of particulars. Order affirmed insofar as appealed from, with $10 costs and disbursements. In our opinion, appellants’ argument that the allegedly defamatory publications concerning plaintiff, a New York State Trooper, are subject to the qualified privilege described in New York Times Co. v. Sullivan ( 376 U. S. 254 ) is premature. For the purposes of the instant motion, which attacks only the face of the pleadings, the allegations charging actual malice are sufficient to take this case outside the scope of the rule announced in that case. Similarly, for the purposes of this motion, appellants’ contentions as to the availability of the defense of fair comment under Julian v. American Business Consultants (2 N Y 2d 1) must fail since the complaint alleges, inter alla, the falsity of the reported facts upon which the opinions expressed were based. Beldoek, P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.