S1190-2011 Actions

• Jan 4, 2012: REFERRED TO CODES
• Jan 5, 2011: REFERRED TO CODES

S1190-2011 Memo

BILL NUMBER:S1190

TITLE OF BILL:
An act
to amend the civil rights law and the civil practice law and rules,
in relation to the accrual of a cause of action for a declaratory
judgment of libel or slander of a decedent

PURPOSE:
To protect the deceased from defamation.

SUMMARY OF PROVISIONS:
This legislation amends the Civil Rights Law to
add a new section 78-a which would provide that a cause of action for
a declaratory judgment of libel or slander would accrue to the
spouse, parent or child of a decedent as the result of a libel or
slander which occurred after, but within five years of the decedent's
death. Any such action must be commenced within one year of the date
of the alleged libel or slander, pursuant to section 215 of the Civil
Practice Law and Rules, Prior to the commencement of such action, the
spouse, parent or child must request a retraction of such statements
by registered or certified letter. In such letter, the spouse,
parent or child must set forth, in general terms, their objections to
such statements, If such statements were made by a newspaper, radio
or television station, a copy of such letter must also be sent to one
national wire service and one newspaper of general circulation in the
same county as such statements were published or spoken. No action
may be commenced until thirty days after such letter has been
received. If a retraction is issued, the right to a cause of action
shall cease. Notwithstanding any other provisions of law, tape
recordings with the deceased may
be admitted as evidence subject to all other evidentiary standards.

JUSTIFICATION:
Defamation is an invasion of and protects the interest
in reputation and good name. Prosser, Law of Torts, sec. 111 at 737
(4th ed. 1971). These purposes and rationales for this cause of
action operate with the same force for a deceased person as they do
for a living person; indeed, the deceased's reputation, community
standing and good name are the only non-material things that survive
him, These purposes and rationales should operate with even more
force for the deceased, who is mute to rebut or correct defamatory
statements. These were two dramatic instances which pointed out the
need for this type of legislation, The first was a story in a major
New York City daily newspaper on July 27, 1979, A front page headline
and picture indicated that two young men who were murdered were
involved in organized crime. The accompanying story clearly makes the
point that these murders were nothing more than gangland activities
and that the young men were members of an organized crime family.
This allegation
was false. The families of these two men were destroyed by that story
and wanted to go to court to protect the reputations of their
children. They learned that they had no rights and this inability to
fight that allegation lead to inseparable harm. At a public hearing
office in 1985 on New York's "Son of Sam" law, an individual came and
spoke about problems he and his family were encountering due to the


death of their son-in-law at the hands of a notorious murderer. A book
and numerous plays had been written about the life of this criminal
and this individual related a story about a play entitled "In the
Belly of the Beast" which included characterizations about his
son-in-law that were completely outrageous. He was upset to learn that
the only things that the world would know about his son-in-law, who
was the victim of this murderer, was what his killer had to say. In
1988, there was a serious abuse of our criminal justice institution.
We may never know the full story about Tawana Brawley. However, in
the aftermath of this affair, the Grand Jury and the Attorney General
made several well-considered recommendations for preventing any
similar future abuse of our criminal process.

LEGISLATIVE HISTORY:
2009/2010 - S.421  Remained in the Senate Committee on Codes
2007/2008 - S.724  Remained in the Senate Committee on Codes
2005/2006 - S.226  Remained in the Senate Committee on Codes

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately and shall apply
to a libel or slander made on or after such effective date.

S1190-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         1190
 2011-2012 Regular Sessions
 I N  SENATE
 January 5, 2011
 
 Introduced by Sens. BRESLIN, HASSELL-THOMPSON, KRUGER, SAMPSON, STAVISKY
 -- read twice and ordered printed, and when printed to be committed to
 the Committee on Codes
 AN  ACT  to  amend  the  civil rights law and the civil practice law and
 rules, in relation to the accrual of a cause of action for a  declara
 tory judgment of libel or slander of a decedent
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1.  The civil rights law is amended by adding  a  new  section
 78-a to read as follows:

 

S  78-A.  CAUSE OF ACTION FOR A DECLARATORY JUDGMENT OF LIBEL OR SLAN
 DER OF A DECEDENT.  A CAUSE OF ACTION FOR A DECLARATORY  JUDGMENT  SHALL
 ACCRUE  TO  THE  SPOUSE,  PARENT OR CHILD OF A DECEDENT AS A RESULT OF A
 LIBEL OR SLANDER THAT OCCURRED AFTER,  BUT  WITHIN  FIVE  YEARS  OF  THE
 DECEDENT'S  DEATH.    ANY  SUCH ACTION MUST BE COMMENCED WITHIN ONE YEAR
 PURSUANT TO SECTION TWO HUNDRED FIFTEEN OF THE CIVIL  PRACTICE  LAW  AND
 RULES.    PRIOR  TO  THE COMMENCEMENT OF SUCH ACTION, THE PLAINTIFF MUST
 REQUEST A RETRACTION OF SUCH ALLEGED LIBELOUS OR  SLANDEROUS  STATEMENTS
 BY  A  REGISTERED OR CERTIFIED LETTER, RETURN RECEIPT REQUESTED FROM THE
 DEFENDANT.  IN SUCH LETTER, THE PLAINTIFF MUST  SET  FORTH,  IN  GENERAL
 TERMS,  THEIR  OBJECTIONS  TO  THE ALLEGED LIBELOUS OR SLANDEROUS STATE
 MENTS.  NO ACTION MAY BE COMMENCED UNTIL THIRTY DAYS AFTER  SUCH  LETTER
 IS  RECEIVED.   IF THE DEFENDANT IS A NEWSPAPER OR A RADIO OR TELEVISION
 STATION, A COPY OF SUCH LETTER MUST ALSO BE SENT TO  ONE  NATIONAL  WIRE
 SERVICE  AND  ONE NEWSPAPER OF GENERAL CIRCULATION IN THE SAME COUNTY AS
 SUCH ALLEGED LIBELOUS OR SLANDEROUS STATEMENTS WERE PUBLISHED OR SPOKEN.
 NOTWITHSTANDING ANY OTHER PROVISION OF LAW, TAPE RECORDINGS  WITH  THE
 DECEASED  MAY  BE  ADMITTED AS EVIDENCE SUBJECT TO ALL OTHER EVIDENTIARY
 STANDARDS.
 

S 2.

Section 215 of the civil practice law and  rules  is  amended  by
 adding a new subdivision 9 to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD05126-01-1
 
       S. 1190                             2
 9. 

AN ACT FOR A DECLARATORY JUDGMENT OF LIBEL OR SLANDER OF A DECEDENT
 PURSUANT TO SECTION SEVENTY-EIGHT-A OF THE CIVIL RIGHTS LAW.
 

S  3. This act shall take effect immediately and shall only apply to a
 libel or slander made on or after such effective date.

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