()

A state appeals panel has affirmed the dismissal of a defamation suit filed by Brooklyn Supreme Court Justice Larry Martin (See Profile) over articles in the New York Daily News that falsely accused him of unethical conduct.

The unanimous Appellate Division, First Department, ruled that the suit, which targeted two columns by former Daily News writer Errol Louis, failed because even though the columns, printed in 2007, were false and not protected opinion, Martin had not shown that Louis or the paper acted maliciously.

Justice David Saxe (See Profile) wrote the opinion in Martin v. Daily News, 103129/11, joined by Justices Luis Gonzalez (See Profile), Peter Tom (See Profile) and Richard Andrias (See Profile). The panel affirmed a December 2012 order by Manhattan Supreme Court Justice Martin Shulman (NYLJ, Dec. 6, 2012).

The columns at issue reported on a lawsuit filed by Brooklyn businessman Martin Riskin against attorney Jerome Karp. It alleged that Karp was working as “illegal shadow counsel” for a party in another lawsuit Riskin had filed that was before Martin, and that Karp simultaneously was representing Martin in a matter before the Commission on Judicial Conduct.

In fact, the party allegedly represented by Karp only moved to intervene in the suit before Martin, and then immediately withdrew the motion.

Louis’ columns cited Riskin’s attorney, Ravi Batra, as a source. Batra initially was named as a defendant but was later dismissed from the case (NYLJ, July 17, 2009).

Shulman dismissed the suit, finding that the columns were not written with actual malice.

Saxe, in Thursday’s opinion upholding Shulman, ruled that the columns contained “more than technical inaccuracies,” and were in fact defamatory.

“They lie at the heart of the defamation by which Louis conveyed to the reader the accusation that Justice Martin, whom Louis characterized as a corrupt judge, presided over [the lawsuit], and that he knowingly did so despite a disabling conflict of interest,” Saxe wrote.

“As a result of this missing information and Louis’s careless reporting, the columns created a false impression that Justice Martin was mixed up in corruption,” he continued.

However, Saxe found that Martin had not met the burden of showing that Louis and the Daily News acted with “actual malice,” as required by Supreme Court in its 1964 decision New York Times Co. v. Sullivan, 376 U.S. 254.

“Rather, Louis’s sometimes inaccurate reporting about the Riskin v. Karp lawsuit and Justice Martin’s conduct was simply sloppy and careless,” the judge said.

Saxe also addressed an issue Martin raised about a glitch on the Daily News’s website. Some time after the columns were printed, the Daily News switched to a new content management system. In March 2010, it discovered that the columns had been lost from the website during the switch. It subsequently put them back up. Martin argued that this was a second publication, giving rise to additional liability.

Saxe rejected this argument.

“Had the columns remained on the Daily News website as was intended, their presence there three years later would not have justified any additional action,” he wrote. “Their inadvertent deletion during a changeover to a new computer content-management system, and their restoration once that inadvertent deletion was discovered, was not geared toward reaching a new audience.”

The Daily News and Louis are represented by Laura Handman, a partner at Davis Wright Tremaine.

“We are pleased that the Court ruled unanimously in our favor, applying the demanding standard imposed by the First Amendment on public officials who sue for defamation—a fitting tribute on the 50th anniversary of Justice Brennan’s decision in New York Times v. Sullivan,” Handman said. “The court’s forward thinking application of the single publication rule to the realities of Internet publishing was also welcome.”

Martin is represented by Stuart Blander, a principal at Heller, Horowitz & Feit.

“We are obviously disappointed that the Appellate Division found that we did not show that the columns were written with the requisite ‘actual malice,’ which is the ‘demanding hurdle’ applicable to public figures such as Justice Martin,” Blander said. “Neverthless, today’s Opinion constitutes a strong vindication of Justice Martin’s integrity and a serious indictment of the editorial and reporting standards of Mr. Louis and the Daily News.”