Kostolecki v. Buffalo Courier Express Co.

Order modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In this action for libel arising out of defendant newspaper’s publication of an altered wire service story deliberately misidentifying plaintiff, a former employee of defendant, as a suspected burglar, the court erred in granting defendant summary judgment dismissing plaintiff’s claim for punitive damages. In order to prevail on its motion, defendant was required to establish by proof in admissible form that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562). Defendant failed to meet that burden. Indeed, as found by the court based on the affidavits submitted by both parties, there is a basic question of fact concerning who was responsible for *857altering the AP story to insert plaintiffs name. If, as alleged by plaintiff, the acting national editor of the paper deliberately altered the news article, such conduct certainly would constitute actual malice justifying imposition of punitive damages. Whether such conduct could be imputed to defendant corporation depends on whether the culpable employee was vested with such "a high level of general managerial authority in relation to the nature and operation of the employer’s business * * * that his participation in the wrongdoing renders the employer blameworthy” (Loughry v Lincoln First Bank, 67 NY2d 369, 380-381). The wrongdoer’s rank in the corporation, and hence the defendant’s liability for punitive damages, are questions of fact that preclude summary judgment for defendant.

We have considered the contentions raised on defendant’s cross appeal and conclude that they are without merit.

All concur, except Callahan, J. P., and Balio, J., who dissent in part and vote to affirm for reasons stated in decision at Supreme Court, Rossetti, J. (Appeals from order of Supreme Court, Erie County, Rossetti, J.—summary judgment.) Present —Callahan, J. P., Denman, Green, Balio and Lowery, JJ.