SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

931 

CA 12-00560 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

CHRISTOPHER J. ALF, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

THE BUFFALO NEWS, INC., DEFENDANT-RESPONDENT. 

 

CARTER LEDYARD & MILBURN LLP, NEW YORK CITY (JOHN J. WALSH OF

COUNSEL), AND HARRIS BEACH PLLC, BUFFALO, FOR PLAINTIFF-APPELLANT. 

HISCOCK & BARCLAY, LLP, BUFFALO (JOSEPH M. FINNERTY OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Gerald J.

Whalen, J.), entered December 28, 2011 in a defamation action. The

order, among other things, granted defendant’s motion for summary

judgment. 

It is hereby ORDERED that the order so appealed from is affirmed

without costs.

Memorandum: Plaintiff, the chairperson and sole shareholder of

National Air Cargo Holdings, Inc., which wholly owns National Air

Cargo, Inc. (NAC), commenced this defamation action after defendant

published a series of articles stemming from a guilty plea by NAC in

federal court. Supreme Court properly granted defendant’s motion for

summary judgment dismissing the amended complaint based on the defense

of absolute privilege under Civil Rights Law § 74. That statute

provides in relevant 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” (id.). The term “fair and

true report” has been given a liberal interpretation (see Cholowsky v

Civiletti, 69 AD3d 110, 114; Becher v Troy Publ. Co., 183 AD2d 230,

233). “ ‘When determining whether an article constitutes a “fair and

true” report, the language used therein should not be dissected and

analyzed with a lexicographer’s precision. This is so because a

newspaper article is, by its very nature, a condensed report of events

which must, of necessity, reflect to some degree the subjective

viewpoint of its author’ ” (Becher, 183 AD2d at 234, quoting Holy

Spirit Assn. for Unification of World Christianity v New York Times

Co., 49 NY2d 63, 68). A report is “fair and true” within the meaning

of the statute if it is “substantially accurate” (Holy Spirit Assn.

for Unification of World Christianity, 49 NY2d at 67; see Tenney v

Press-Republican, 75 AD3d 868, 868; Cholowsky, 69 AD3d at 114).
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The crux of the amended complaint is that the factual premise of

the defamatory articles, i.e., that plaintiff and NAC admitted that

they repeatedly and fraudulently overcharged the government by

millions of dollars, was utterly false and defamatory. The statements

referencing NAC only, and not plaintiff, were not “of and concerning”

plaintiff, and the amended complaint therefore was subject to

dismissal to the extent that the allegedly defamatory statements did

not name plaintiff (Carlucci v Poughkeepsie Newspapers, 57 NY2d 883,

885), apart from the defense of absolute privilege under Civil Rights

Law § 74. The statements “of and concerning” plaintiff set forth,

inter alia, that plaintiff avoided any jail time based on a plea deal,

and only one statement of the 36 allegedly defamatory statements set

forth in the amended complaint directly asserted that plaintiff

cheated the government. We agree with defendant that the articles

read as a whole, including all of the allegedly defamatory statements

(see Miller v Journal-News, 211 AD2d 626, 627), would lead the average

reader to conclude that NAC, not plaintiff himself, had cheated the

government. 

We further agree with defendant in any event that the defense

under Civil Rights Law § 74 applied to all of the allegedly defamatory

statements. NAC pleaded guilty to only a single charge of falsifying

a proof of delivery document, but the plea agreement also included a

provision requiring NAC to pay almost $28 million in fines and

restitution. The prosecutor set forth the reasoning supporting the

fines and restitution, i.e., that NAC agreed “for purposes of relevant

conduct and for this plea agreement that the loss to the United States

has been established by the government to be the sum of $4,400,000 for

the time period January 1999 to and including March 2002.” The

prosecutor further stated that NAC’s owner would not “be processed by

my office . . . for the criminal offenses that relate to the facts set

forth in paragraph 4 of the [plea] agreement, which are the

falsifications, proofs of delivery sent as confirmation of delivery

dates.”

In view of the agreement by NAC to the amount of the government’s

loss, together with its admission to submitting a false document to

the government on at least one occasion, we conclude that the

statements in the articles that NAC repeatedly overcharged the

government, and that there would be no jail time for plaintiff and

other company officials, were substantially accurate (see generally

Mills v Raycom Media, Inc., 34 AD3d 1352, 1353). Indeed, we note that

the Department of Justice’s own press releases were similar to the

statements made in the newspapers articles that plaintiff alleges were

defamatory. Plaintiff contends that the articles were false because

NAC settled with the government to avoid being suspended as an air

freight forwarder, and the dispute over air versus truck transport

stemmed from a good-faith dispute over the applicable federal

regulations. However, there is “no requirement that the publication

report the plaintiff’s side of the controversy” (Cholowsky, 69 AD3d at

115; see Tenney, 75 AD3d at 868-869; Glendora v Gannett Suburban

Newspapers, 201 AD2d 620, 620, lv denied 83 NY2d 757). 

All concur except CARNI and SCONIERS, JJ., who dissent in part and
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vote to modify in accordance with the following Memorandum: We

respectfully disagree with the conclusion of our colleagues that

Supreme Court properly granted defendant’s motion for summary judgment

dismissing the amended complaint in its entirety, and we therefore

dissent in part. We conclude that the statements that were “of and

concerning” plaintiff were “reasonably susceptible of a defamatory

connotation” (James v Gannett Co., 40 NY2d 415, 419, rearg denied 40

NY2d 990; see Bee Publs. v Cheektowaga Times, 107 AD2d 382, 382-383,

386) and that defendant is not entitled to the protection afforded by

Civil Rights Law § 74 for those statements. We thus would modify the

order by denying defendant’s motion to the extent that it concerns the

statements pertaining specifically to plaintiff, and we would strike

the affirmative defense of Civil Rights Law § 74 as to those

statements. 

On October 25, 2007, general counsel for National Air Cargo, Inc.

(NAC), with approval from NAC’s board of directors, pleaded guilty on

behalf of NAC to one count of filing a false statement. The plea

agreement was described by the Federal District Court as a “global

settlement” in satisfaction of “all Federal offenses committed” by the

corporation during the relevant time period. In the days and weeks

following the plea, defendant published a series of articles reporting

that the company, inter alia, admitted to “cheating” the United States

military out of millions of dollars. Throughout the series of

articles, defendant made numerous statements naming plaintiff

specifically, and reporting that plaintiff had evaded serving jail

time as a result of the plea deal by employing “the best lawyers money

could buy” and a “dream team” of attorneys. An editorial published on

November 8, 2007, asked “why in the name of decency should the leaders

of National Air Cargo escape personal punishment for cheating the U.S.

Defense Department—and, therefore, American troops and

taxpayers—during wartime?” It went on to say, “there’s no law that

says companies and their leaders can’t be moral, ethical, patriotic

and plain honest.” In another article, published March 2, 2008,

defendant reported that “[t]he couple [referring to plaintiff and his

wife] also maintains that it stopped cheating the government in 2005.” 

Notably, plaintiff was not a named defendant in the federal criminal

action against NAC and there was no admission of criminal liability on

the part of plaintiff during the proceedings (see generally Fraser v

Park Newspapers of St. Lawrence, 246 AD2d 894, 895-896).

“For a report to be characterized as ‘fair and true’ within the

meaning of [Civil Rights Law § 74], . . . it is enough that the

substance of the article be substantially accurate” (Holy Spirit Assn.

for Unification of World Christianity v New York Times Co., 49 NY2d

63, 67). Because the various reports impute wrongdoing to plaintiff

as an individual, they produce “a different effect on the mind of the

reader from that which the pleaded truth would have produced” (Dibble

v WROC TV Channel 8, 142 AD2d 966, 967 [internal quotation marks

omitted]) and “suggest[] more serious conduct than that actually

suggested in the official proceeding” (Daniel Goldreyer, Ltd. v Van de

Wetering, 217 AD2d 434, 436). We therefore conclude that, with

respect to the reports specifically concerning plaintiff, defendant

did not act “ ‘as the agent of the public, reporting only that which
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CA 12-00560 

others could hear for themselves were they to attend the

proceedings’ ” (Dibble, 142 AD2d at 968, quoting Hogan v Herald Co.,

84 AD2d 470, 477-478, affd 58 NY2d 630). Thus, in our view, defendant

is not entitled, as a matter of law, to protection under Civil Rights

Law § 74 for the statements pertaining to plaintiff specifically. 

Entered: November 16, 2012 Frances E. Cafarell

Clerk of the Court