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A private real estate developer in New York who made himself a limited purpose public figure by tapping into government funds has lost a long-running libel action against the Buffalo News. The dispute, which has continued for several years, ultimately distilled to a question of whether Lawrence E. White, who has generally been out of the public eye for more than a decade, could sustain a defamation action by targeting only a headline that did not identify him by name. Supreme Court Justice John P. Lane recently ruled that he cannot and dismissed the claim. White v. Berkshire-Hathaway Inc., 1995/3771 (Erie County), reaffirmed the principle that once a public figure, always a public figure, according to defendant’s counsel Joseph M. Finnerty of Stenger & Finnerty in Buffalo, N.Y. “It constitutes a straightforward statement by the New York courts of the principle that once you are a limited purpose public figure, you are always a limited purpose public figure,” Finnerty said. “This plaintiff hasn’t had a single article published about him for a dozen years or so.” Court records show that White was active in urban redevelopment and real estate rehabilitation in Buffalo during the mid- to late-1970s. As a prominent developer, an operator of a nursing home and a businessman who frequently funded his ventures through government financing, White was often in the news during that period. The suit stemmed from an article and editorial that appeared in the Buffalo News in May 1994, long after White was largely gone from the public scene. Those items referred to a struggling local nursing home, which White had operated, as well as his business practices. An article headlined “Unscrupulous Operation Gouges Nursing Home” appeared in the Buffalo News, followed by an editorial entitled “Profiting From the Poor — Nursing Home Situation Was Unconscionable.” White alleged that both the article and editorial were defamatory, but his action suffered a major blow two years ago when Lane found that the plaintiff was a limited purpose public figure who must be held to a higher standard in a libel case. Under New York Times v. Sullivan, 276 US 254 [1964], public figures must establish “actual malice” — essentially, that the author knew the statement was false or evinced a reckless disregard for the truth — in order to prevail. Lane found that White had become a limited purpose public figure through his own acts, such as promoting himself in the media, declaring that his new nursing home would create jobs, seeking public funds for the development and operation of the nursing home and engaging in business practices that prompted investigations by federal and local authorities. Last March, the Appellate Division, 4th Department, unanimously affirmed that finding in a brief order. White then limited his action to the article’s headline, taking particular exception to the words “unscrupulous” and “gouges.” Lane dismissed the action on a summary judgment motion, finding that a headline that does not name the plaintiff is not independently actionable. “It is significant that plaintiff was not named in the headline at issue here,” Lane wrote. “[T]he headline here fails not only to specifically refer to plaintiff by name, it omits a reference to any person whatsoever. Instead, it speaks to an ‘operation’ rather than an ‘operator.’” In any case, Lane said, a headline and an article must be considered together, and where the headline accurately reflects the content of the article, the headline itself is not actionable. “[T]he court takes judicial notice of a customary journalistic practice calling for the use of a verb to command the reader’s attention to the news article,” Lane wrote. “Although the verb ‘gouges’ is a strong one, it does not rise to the level of actionable malice in the context of this case.” Richard T. Sullivan of Buffalo, counsel for the plaintiff, could not be reached for comment.

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