Upon the following papers numbered 1 to 12 read on this motion and amended motion to dismiss: Notice of Motion 1 - 2; Amended Notice of Motion and supporting papers 3 -4; Affirmation and Affidavit in Opposition and supporting papers 5 - 11; Reply Affirmation and supporting papers 12; it is,

ORDERED that this motion (001) to dismiss by the defendants is withdrawn; and it is further

ORDERED that this amended motion (002) by the defendants for an order dismissing the complaint is granted and the complaint is dismissed in its entirety; and it is further

ORDERED that counsel for the defendants is directed to serve a copy of this decision and order upon counsel for the plaintiff pursuant to CPLR 2103(b)(1), (2) or (3) within 30 days of the date of this decision and order.

This is an action sounding in libel brought by the plaintiff, Michael Chowlowsky (hereinafter the plaintiff) against the corporate owner of The Times-Review newspaper, Times/Review Newspapers Corporation, and its editor/reporter, Denise Civiletti (hereinafter collectively referred to as the defendants).

The plaintiff was involved in a permitting process with the New York State Department of Environmental Conservation (hereinafter the DEC) regarding the mining of sand at a site in Riverhead and the reclamation of the land after the mining was completed.

On December 14, 2006, two articles were published in The Times-Review (a Riverhead newspaper), both with a by-line by the defendant Civiletti, which addressed the permitting process and related circumstances pertaining to alleged criminal activities regarding the plaintiff.

The plaintiff, in his complaint, alleges that certain specific statements contained in those articles were knowingly false, were published recklessly and carelessly, with malice, ill will and the intent to harm, and were circulated in a grossly irresponsible manner without consideration for the standards of information gathering and dissemination followed by responsible parties.

The defendants' first notice of motion (001) failed to include a copy of the complaint and, thus, the defendants submitted an amended notice of motion (002) to cure this defect. Accordingly, the first motion (001) is withdrawn as it is superceded by the amended motion (002).

In the amended notice of motion, the defendants seek an order dismissing the complaint based upon CPLR 3211(a)(1) (documentary evidence), CPLR 3211(a)(7) (failure to state a cause of action), CPLR 3211(g) (a case involving public petition and participation) and CPLR 3212(h) (also based upon public petition and participation). More specifically, the defendants claim that everything in the two articles at issue, including the specific alleged libelous statements, was based upon public documents as well as numerous previously published stories in the newspaper Newsday.

Moreover, the defendants contend that the provisions of Civil Rights Law §76-a ^[FN1] apply to them and they are, thus, afforded the protections of CRL §76-a with regard to this action. The applicability of this section also pertains to the applicability of CPLR 3211(g) and 3212(h).

The defendants also argue that, in any event, if the court finds that the provisions of CRL §76-a do not apply here, they are still entitled to dismissal based upon the law applicable to published items regarding public figures and matters of public interest.

In opposition, the plaintiff points out the falsity of the statements, argues that CRL §76-a [*2]does not apply to newspapers and contends that the degree of irresponsibility on the part of the defendants leads to no other conclusion than that they knew they were publishing falsehoods and that it was their intent to do so in order to harm the plaintiff.

As a threshold finding, the court holds that the defendants are not entitled to use the protections of CRL §76-a. Since this law took effect in 1993, there has never been a case in which a newspaper successfully came under the umbrella protection of this statute for articles or stories generated by its writers. Indeed, the intent behind the statute was and is to protect citizen activists - not the media - who are at a disadvantage in defending lawsuits brought by financially able public applicants or permittees who seek to quell opposition to their applications by private individuals or non-profit groups who cannot afford to defend such suits (see Guerrero v Carva, 10 AD3d 105, 116, 779 NYS2d 12, 21[1st Dept 2004]).

Accordingly, the arguments based upon CRL §76-a will not be considered on this motion and neither will the related grounds found in CPLR 3211(g) and 3211(h) which are based upon CRL §76-a.

The defendants, in arguing that the public documents they referred to establish a non-actionable basis for the complained of statements, contend that they are also entitled to dismissal on the basis of these documents (CPLR 3211[a][1]) as well as these documents supporting their theory that there is no cause of action stated here (CPLR 3211[a][7]).

In further support of their motion to dismiss, the defendants rely on another provision of the Civil Rights Law, to wit: Section 74. Section 74 of the Civil Right Law provides, in part, that:

"A civil action cannot be maintained against any person, firm or

corporation, for the publication of a fair and true report of any

judicial proceeding . . . .

"This section does not apply to a libel contained in any other

matter added by any person concerned in the publication; or in

the report of anything said or done at the time and place of such

a proceeding which was not a part thereof."

At this point, it is useful to examine the actual statements complained of:

The first article, entitled, "Who's mining the mine?", stated that the plaintiff "admitted involvement in a bribery scheme to gain illegal access to the Brookhaven landfill"; the plaintiff "testified in 1999 that he had paid bribes totaling $20,000 to Republican party leader John Powell for the right to dump at the town landfill"; and, that the plaintiff pled guilty "to a felony count of conspiracy to defraud the United States, and was sentenced to one year probation."

The second article, entitled, "Stink, stank, stunk again," apparently an opinion piece rather than a news article, stated that the plaintiff "testified in federal court that he bribed Brookhaven town [*3]officials to gain access to the landfill, where he dumped solid waste"; and, that "[e]vidence gathered by the federal investigators established that Provenzano [an individual involved in the alleged conspiracy] was using [the plaintiff's] hauling permit [issued to one of the plaintiff's corporations] to illegally dump hazardous waste at the Brookhaven landfill."

The plaintiff, in opposing this motion to dismiss, contends that he never engaged in "bribery." According to the plaintiff, he was extorted by Brookhaven officials and the payments he made were part of the extortion which were required for him (and his corporations) to use the landfill for otherwise lawful purposes; not for "illegal access."

The plaintiff also takes issue with the statement that he pled guilty "to a felony count of conspiracy to defraud the United States," claiming that he never pled guilty to any "fraud" with regard to the United States or anyone else. And, he claims, when Provenzano used the plaintiff's corporation's permit, no hazardous waste was dumped in the landfill.

The plaintiff also adds that the source for all of this information was only from Newsday articles which, if false, provide no protection to the defendants under CRL §74 or under any common law principles.

The defendants, in support of their motion to dismiss, state that the sources for the complained of statements were not only numerous Newsday articles but also public records which provided the defendants with plea transcripts, trial transcripts, docket reports and judgment transcripts which, in their totality, support every statement complained of, separately and independently of the Newsday articles. Specifically, the defendants point out the following:

The transcript of the plaintiff's plea shows that he pled guilty to the Class D felony of "Conspiracy to commit offense or to defraud United States" (18 USCS §371) and that the crime he conspired to commit was "Theft or bribery concerning programs receiving Federal funds" (18 USCS §666). This alone provides a basis for stating that the plaintiff had pled guilty to a count of "conspiracy to defraud the United States" and that he pled guilty to "bribery."

It is true that a careful reading of the applicable sections of law and the supporting documents referred to above shows that the "conspiracy" was with regard to committing an offense against the United States rather than to defrauding the United States, although this section of law (18 USCS §371) includes both in its applicability, but it is within the realm of understanding that a lay person such as a reporter would look at the statute and not make this distinction. Indeed, "Newspapers cannot be held to a standard of strict accountability for use of legal terms of art in a way that is not precisely or technically correct by every possible definition" (Gurda v Orange County Publications Div. Of Ottawa Newspapers, Inc., 81 AD2d 120, 133, 439 NYS2d 417, 425 [2d Dept 1981], revd on other grounds 56 NY2d 705, 451 NYS2d 724 [1982]).

And a careful reading of the section which comprised the offense which the plaintiff [*4]conspired to commit (18 USCS §666) only refers to two kinds of criminal acts; "theft" or bribery." Since the conduct involved was clearly not a "theft" that leaves only "bribery" as the applicable offense which, in this case, taking the plaintiff's version as true, encompassed extortion payments rather than bribery payments. In any event, it was a reasonable interpretation - and perhaps the only reasonable interpretation in view of the language of this statute - to describe the plea as to "bribery" rather than "theft."

In addition, at the plea proceeding, the judge presiding asked the Assistant United States Attorney in the presence of this plaintiff and his lawyer if the plea involved a "bribery charge" and a "general fraud charge" and the answer was, "yes." And while it is true that the plaintiff's lawyer made it clear to the court and the record that his client made payments as part of an extortion to be allowed the otherwise lawful access and use of the landfill rather than a bribery for the unlawful use of the landfill, the underlying sections which he pled guilty to as well as the colloquy referred to above provide a good faith basis for the statements complained of with regard to "bribery" and "defrauding the United States."

The court also confirmed with this plaintiff at the plea proceeding that as part of the plea agreement "no criminal charges" would be brought against him for his "heretofore disclosed participation in criminal activity involving: conspiring . . . to make payments . . ., tax fraud, possession of stolen trucks and truck/truck parts with altered VINS . . . ."

Moreover, a review of the public records relied upon by the defendants shows the following:

The criminal Information to which this plaintiff pled guilty ( United States v Michael Cholowsy, CR. No. 99-780) - Contains one count charging a conspiracy to "corruptly give and offer things of value" and lists four overt acts comprised of making payments to a Brookhaven official; and, the "Judgment" in the criminal case reflects the plea to a "Conspiracy to Make Corrupt Payments/A Class D Felony."

In short, based solely upon the criminal judicial proceedings and the relevant public records, there is support for statements as to "bribery" and defrauding the United States.

As to the statement that a co-conspirator used the plaintiff's permit to "illegally dump hazardous waste," the defendants essentially concede that they made a mistake in this regard and have acknowledged that the complaint against Provenzano says, inter alia, that a wire tap revealed that Provenzano described "a scheme in which PROVENZANO and others intended to bring hazardous materials to the Brookhaven landfill" utilizing this plaintiff's permit (Complaint, US v Provenzano, et al., Cr. No. 98-1855). In other words, the allegation in the complaint is that Provenzano was planning to dump hazardous materials and not that he actually had dumped hazardous materials. [*5]

This, the defendants argue may have been, at worst, a misstatement or a mistake but cannot be said to reflect any malice, actual or otherwise (see e.g. Becher v Troy Publishing Co., 183 AD2d 230, 236, 589 NYS2d 644, 648 [3d Dept 1992]). Moreover, and in any event, they argue that this statement was with regard to Provenzano and not this plaintiff.

The defendants, in addition to their reliance upon CRL §76-a - which this court rejected hereinbefore - also seeks to have the court apply the stringent libel standards applicable to "public figures" as well as to "public events" which would require a showing by the plaintiff of actual malice in addition to reliance upon CRL §74 which, as previously discussed, provides a blanket prohibition against civil actions "for the publication of a fair and true report of any judicial proceeding, [etc.]."

In this case, although there has been no satisfactory showing by the plaintiff of actual malice, the court need go no further than CRL §74. Notwithstanding the plaintiff's misplaced contention that the statements at issue were only based upon articles in Newsday, the submissions on this application clearly show the statements were all with regard to judicial proceedings and parts thereof, supported by the public documents relative to those proceedings in addition to being bolstered by Newsday articles. Moreover, the statements accurately portrayed the gist of what transpired in the subject proceedings (see Holy Spirit Assn. for the Unification of World Christianity v New York Times Co., 49 NY2d 63, 424 NYS2d 165 [1979].

The court notes that the provisions of CRL §74 are to be liberally applied (see Becher v Troy Publishing Co., 183 AD2d 230, 236, 589 NYS2d 644, 648 [3d Dept 1992]) and the "fair and true" standard has been held to apply to articles containing partial inaccuracies, even if misleading (see Gurda v Orange County Publications Div. Of Ottawa Newspapers, Inc., 81 AD2d 120, 133, 439 NYS2d 417, 425 [2d Dept 1981], revd on other grounds 56 NY2d 705, 451 NYS2d 724 [1982]), as long as the reporting is substantially fair and true (see Freeze Right Refrigeration & Air Conditioning Servs., Inc. v City of New York, 101 AD2d 175, 475 NYS2d (1st Dept 1984); Abernathy & Closther v Buffalo Broadcasting Co., 17 Media L Rptr (BNA) 1156 (Sup Ct, Nassau County 1989)]; Keough v New York Herald Tribune, Inc., 51 Misc 2d 888, 274 NYS2d 302 (Sup Ct, New York County 1966), aff'd 28 AD2d 1209, 285 NYS2d 262 (1967)]. In addition, since CRL §74 is applicable here, allegations of malice or bad faith are irrelevant if the reporting is otherwise true and fair (see Pelayo v Celle, 270 AD2d 469, 705 NYS2d 282 [2d Dept 2000]).

The defendants are also entitled, in reporting on a matter of legitimate public interest, which is the case here, to have the court apply the standard enunciated by the Court of Appeals in Chapadeau v Utica Observer-Dispatch, Inc. (38 NY2d 196, 379 NY2d 61 [1975]), to wit: The plaintiff must establish by a preponderance of the evidence that the defendants' acted in a "grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties" (38 NY2d at 199, 379 NYS2d at 64). As discussed herein, the plaintiff has failed to meet this standard. [*6]

In accordance with the provisions of CRL §74, the defendants have shown that the published statements in issue were fair and true reports of the judicial proceedings which were the bases and focus of said statements and, as such, no civil action may be brought against these defendants for such publication. Accordingly, the complaint herein, with its single cause of action sounding in libel cannot be maintained and must be dismissed for its failure to state a viable cause of action.

This decision constitutes the order of the court.

Dated: September 5, 2007______________________________________

Hon. Paul J. Baisley, Jr., J.S.C.