BILL NUMBER: S1472

SPONSOR: BRESLIN
 
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 dece-
dent as the result of a libel or slander which occurred after, but with-
in 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 commence-
ment o.f 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 circu-
lation 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 gang-
land 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 indi-
vidual 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 murder-
er. 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:

2019/2020 S.779 Referred to Codes

2017/2018 S.2799 Referred to Codes

2015/2016 S.1332 Referred to Codes

2013/2014 S.1154 Referred to Senate Committee on Codes

2011/2012 S.1190 Referred to the Senate Committee on Codes

2009/2010 S.421 Referred to the Senate Committee on Codes

2007/2008 S.724 Referred to the Senate Committee on Codes

2005/2006 S.226 Referred to 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.