Bill S1190-2011

Accrual of a cause of action for libel or slander of a decedent

Provides that a cause of action for a declaratory judgement 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 a decedent's death; provides that any such action must be commenced within one year of the date of the alleged libel or slander; provides that prior to the commencement of such action, the spouse, parent or child must request a retraction of such statements by registered or certified letter.

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

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 1190 2011-2012 Regular Sessions IN 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:
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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