Opinion
October 20, 1997
Appeal from the Supreme Court, Nassau County (DeMaro, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see, CPLR 6601 [a] [1]).
It was undisputed that statements incorporated into a Newsday article dated February 11, 1983, made by the defendant Joseph Caputo, as comptroller of Suffolk County, regarding a one million dollar contract between the plaintiff Tricom Systems, Inc. and Suffolk County, were protected by a qualified privilege ( see, Hirschhorn v. Town of Harrison, 210 A.D.2d 587, 588; ATN Marts v. Ireland, 195 A.D.2d 959). As such, to prevail in a defamation suit, the plaintiffs would have to prove with "`convincing clarity' `that the statement was made with "actual malice" — that is, with knowledge that it was false or with reckless disregard of whether it was false'" ( Prozeralik v Capital Cities Communications, 82 N.Y.2d 466, 474, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285-286, 279-280). Since Caputo did not know his statements to be false, the plaintiffs' claims rested upon proof of a reckless disregard of whether they were false ( see, Sweeney v. Prisoners' Legal Servs., 84 N.Y.2d 786, 792).
There is "simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion" that Caputo's statements were made with a reckless disregard of the truth ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499; see, Sweeney v. Prisoners' Legal Servs., supra). Accordingly, the court properly granted the defendants' motions to set aside the jury verdicts in favor of the plaintiffs and awarded judgment in favor of the defendants.
O'Brien, J.P., Thompson, Santucci and Joy, JJ., concur.