STATE OF NEW YORK
       ________________________________________________________________________
 
                                         1979
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                   January 31, 2001
                                      ___________
 
       Introduced by Sens. BRESLIN, GENTILE, HASSELL-THOMPSON, KRUGER, SAMPSON,
         STACHOWSKI,  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:
 
    1    Section  1.    The civil rights law is amended by adding a new section
    2  78-a to read as follows:
    3    § 78-a.  Cause of action for a declaratory judgment of libel or  slan-
    4  der  of  a decedent.  A cause of action for a declaratory judgment shall
    5  accrue to the spouse, parent or child of a decedent as  a  result  of  a
    6  libel  or  slander  that  occurred  after,  but within five years of the
    7  decedent's death.  Any such action must be  commenced  within  one  year
    8  pursuant  to  section  two hundred fifteen of the civil practice law and
    9  rules.  Prior to the commencement of such  action,  the  plaintiff  must
   10  request  a  retraction of such alleged libelous or slanderous statements
   11  by a registered or certified letter, return receipt requested  from  the
   12  defendant.    In  such  letter, the plaintiff must set forth, in general
   13  terms, their objections to the alleged  libelous  or  slanderous  state-
   14  ments.    No action may be commenced until thirty days after such letter
   15  is received.  If the defendant is a newspaper or a radio  or  television
   16  station,  a  copy  of such letter must also be sent to one national wire
   17  service and one newspaper of general circulation in the same  county  as
   18  such alleged libelous or slanderous statements were published or spoken.
   19    Notwithstanding  any  other provision of law, tape recordings with the
   20  deceased may be admitted as evidence subject to  all  other  evidentiary
   21  standards.
   22    §  2.  Section  215  of the civil practice law and rules is amended by
   23  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.
                                                                  LBD03212-01-1

       S. 1979                             2
 
    1    9. an act for a declaratory judgment of libel or slander of a decedent
    2  pursuant to section seventy-eight-a of the civil rights law.
    3    §  3. This act shall take effect immediately and shall only apply to a
    4  libel or slander made on or after such effective date.

 
BILL NUMBER: S1979
 
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
 
 
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 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 organ-
ized 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 irreparable harm.  At a hearing sponsored by this
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-con-
sidered recommendations for preventing any similar future abuse of our
criminal process.  In their report, the grand jury commented that:
 
STATED FINDINGS "The Grand Jury has heard evidence that a deceased
part-time police officer was publicly accused of participating in an
alleged rape and abduction of a 15 year old girl that occurred between
November 24 and 28, 1987.  The grand jury thoroughly investigated the
officer's death and any potential involvement he might have had in the
alleged incident.  The Grand Jury concluded that the officer's death was
a suicide unrelated to any incident involving the 15 year old girl and
that he had no involvement with any alleged incident involving the girl
between November 24 and 28, 1987.  The Grand Jury heard testimony from
the family of the deceased officer and the pain they experienced from
these public accusations was evident.  Under present law the family of a
deceased person may not bring a lawsuit for defamation of a deceased
person even if the allegations are knowingly false and maliciously made.
 
RECOMMENDATION The Grand Jury recommends that legislation be consid-
ered which would allow the immediate relative of a deceased individual
to bring a cause of action for defamation in a case where the deceased
is knowingly and falsely accused of committing a felony."  The enactment
of this bill would not change any of the legal standards of libel and
would not make it any easier for a family to prove their case.  The fact
that an individual is deceased may even make it harder for the family,
but I believe that if the family is serious about clearing the name of
their deceased relative, they should have that right.  The key here is
libel.  The media should always be held to a standard of truthfulness.
 
 
LEGISLATIVE HISTORY:
1999/2000 - S.1712. Remained in Codes Committee.
 
 
FISCAL IMPLICATIONS TO THE STATE:
None.
 
 
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to a libel or
slander made on or after such effective date.