Opinion
October 21, 1975
Order, Supreme Court, New York County, entered on June 9, 1975, denying defendants' motion for summary judgment dismissing the complaint herein, unanimously reversed, on the law, and motion granted, without costs and without disbursements. Plaintiff, in five causes of action, alleges violations of his right of privacy and that he has been libeled in diverse ways. The claims of the plaintiff run afoul of New York Times Co. v Sullivan ( 376 U.S. 254). Plaintiff, a well-known physician and coauthor of "Dr. Atkins Diet Revolution", which sold almost four million copies, is obviously a public figure (Curtis Pub. Co. v Butts, 388 U.S. 130), whose publications are of public interest. (Rosenbloom v Metromedia, 403 U.S. 29.) As such, he cannot recover "in the absence of proof that the defendant published the [item] with knowledge of its falsity or in reckless disregard of the truth". (Time, Inc., v Hill, 385 U.S. 374, 388; Spahn v Julian Messner, Inc., 21 N.Y.2d 124, 127; Estate of Hemingway v Random House, 23 N.Y.2d 341, 352.) A review of the papers submitted at Special Term indicates that plaintiff failed to come forward with any evidentiary proof of actual malice. Nor did he factually raise an issue as to the truthfulness of the statements he attacks. "It is well settled that summary judgment is properly granted where a qualified privilege obtains and the plaintiffs offer an insufficient showing of actual malice. * * * In the case before us, the plaintiffs have made no showing of knowing or reckless falsity" (Trails West v Wolff, 32 N.Y.2d 207, 221; see, also, Cole Fisher Rogow, Inc. v Carl Ally, Inc., 25 N.Y.2d 943; Shapiro v Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 63-64). Defendants were entitled to summary judgment.
Concur — Kupferman, J.P., Murphy, Tilzer, Capozzoli and Lane, JJ.