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Barbetta Agency Inc. v. Evening News Publishing Co.

Decided: June 27, 1975.

BARBETTA AGENCY, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
THE EVENING NEWS PUBLISHING CO., INC., A NEW JERSEY CORPORATION, AND FRANK G. MEGARO, DEFENDANTS-RESPONDENTS



Leonard, Seidman and Bischoff. The opinion of the court was delivered by Leonard, P.J.A.D.

Leonard

[135 NJSuper Page 216] Plaintiff, a licensed real estate broker, appeals from summary judgment entered in favor of defendants Evening News Publishing Co. (News) and Frank G. Megaro, a Newark councilman and state assemblyman.

Suit was instituted by plaintiff charging defendants with defamation arising from the publication of an article in the News in which plaintiff along with four other brokerage agencies were accused of "block-busting." The article in question charged plaintiff with "using fear and panic techniques in urging homeowners to sell their property" and with violating certain municipal ordinances designed to discourage block-busting by regulating the size and format of "For Sale" signs.

The affidavits submitted in support of defendants' motions for summary judgment revealed that prior to the publication of the article the News had received a press release from Megaro citing widespread abuses of Newark's sign ordinances and calling for more effective enforcement of the municipality's existing safeguards against the destructive practice of real estate block-busting. Believing that the subject matter of the press release was newsworthy, the city editor of the News assigned a reporter to investigate and prepare a report. As part of the investigation, Megaro, as well as a number of other community leaders, realtors and residents were interviewed. The ordinances were examined and several of plaintiff's signs were photographed.

Megaro stated that he had issued the press release as the result of several anonymous telephone calls he had received from his constituents. The callers had voiced complaints to him concerning phone calls they had received from plaintiff urging them to sell their houses and about the nature of plaintiff's signs. When Megaro was interviewed by the newspaper in connection with his press release he related to the reporter that he had received several more complaints from his constituents concerning "both the signs and panic-arousing phone calls from realtors * * * including, particularly, the Barbetta Agency." Megaro further stated that he had personally observed several of plaintiff's signs which he believed were in violation of the ordinances.

Plaintiff did not submit any affidavits in opposition to defendants' motions for summary judgment. However, in depositions plaintiff's president unequivocally admitted that certain of the agency's signs were in fact in violation of the ordinances.

Preliminarily, we note when alleged defamatory words are unambiguous and open only to a single interpretation, it is the function of the trial court to determine as a matter of law whether such words are actionable. If the words are found to possess a defamatory meaning, it becomes defendant's burden to establish the existence of a privilege that will justify the publication of the words. The existence of privilege is basically a question of law for the court, subject to the exercise of the jury's traditional function where the facts are in dispute. Once the existence of privilege is established, the burden is on plaintiff to prove that such privilege was abused. Sokolay v. Edelin, 65 N.J. Super. 112, 122-128 (App. Div. 1961).

In the instant case, there was no dispute that the statements contained in the article were defamatory or actionable. Likewise, plaintiff did not seriously contest that the communication was subject to a qualified privilege. Rather, it sought to show an abuse of privilege or at least that a genuine issue of fact existed with respect thereto.

In his letter opinion the trial judge, relying on New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and, particularly, Rosenbloom v. Metromedia, 403 U.S. 29, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971), ruled as a matter of law that the News was constitutionally privileged to publish the article in question because block-busting was a matter of public concern. As to defendant Megaro, he likewise found the existence of a qualified privilege, citing Sokolay, supra. It was thus incumbent upon plaintiff to demonstrate facts that would defeat or destroy the privilege. The trial judge concluded that no such showing had been

made. Accordingly, summary judgment was entered in favor of defendants.

The sole question presented for our consideration is whether a genuine issue of material fact existed upon the defense of ...


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