Motion sequence nos. 005 and 006 are consolidated for disposition. In motion sequence no. 005, defendant NYP Holdings Co., Inc. d/b/a The New York Post moves, pursuant to CPLR 3212 (a), for summary judgment dismissing the complaint. In motion sequence no. 006, plaintiffs David Kipper, M.D. and David Kipper, M.D., a Professional Corporation (the P.C.) move for summary judgment granting them the relief sought in the complaint.

The complaint alleges that the New York Post libeled Dr. Kipper when it published an article (The Article) in its December 7, 2003 edition, stating that the California Medical Board had revoked Dr. Kipper's medical license. The headline, under which the Article ran, stated: "Ozzy [Osbourne]'s Rx Doc's License Pulled." The Article stated: "Last week, the state medical board revoked Kipper's license, accusing him of gross negligence in the treatment of other patients, according to the Los Angeles Times." The statements that Dr. Kipper's license had been revoked were false. The Article was a rewriting of an article that had appeared on the Los Angeles Times Syndicate's wire service that included the statement that "[t]he [California] state medical board last week moved to revoke Kipper's license." On these motions, defendant does not contend that the false statements in the Article are not defamatory in nature as to Dr. Kipper; defendant does not dispute that the statements impugned Dr. Kipper's professional competence and would thus constitute libel per se.

As an initial matter, defendant's motion must be granted as to the P.C. The Article neither mentions nor refers to that separate entity. The Article, including the above-quoted headline and sentence, speaks only about the individual plaintiff.

Defendant contends that because plaintiff is a resident of California, this action should be controlled by California Civil Code § 48a, which, insofar as is relevant here, provides that a plaintiff who sues a newspaper for libel must demand a retraction of the allegedly false statements within 20 days after obtaining knowledge of the publication, upon which demand the newspaper must publish a retraction within three weeks. If the plaintiff fails to send a timely demand for retraction, or if, upon a demand, the newspaper publishes a timely retraction, then the plaintiff may recover neither [*2]general nor exemplary damages, but is limited to special damages. It is undisputed that plaintiff did not serve a demand for retraction on the New York Post within 20 days of his learning of the defamatory publication.

Section 48a represents the California Legislature's "determination that the danger of excessive recoveries in defamation actions, as well as the public interest in free dissemination of news, justifies restricting recovery to special damages when a retraction has not been demanded and refused." O'Hara v Storer Communications, Inc., 231 Cal App3d 1101, 282 Cal Rptr 712, 723 (Cal App 4th Dist 1991), citing Werner v Southern Cal. Associated Newspapers, 35 Cal2d 121, 216 P2d 825 (1950). Although the New York Post acknowledges that New York is the jurisdiction with the greatest interest in the outcome of this litigation, it argues that section 48a should be applied because plaintiffs, as residents of California, should have governed themselves consistently with the requirements of that statute.

Section 48a is inapplicable here, however, because, contrary to defendant's argument, section 48a is not a conduct-regulating law, but rather, one that provides a post-event mechanism for reparation. As to such rules, often referred to as "loss-distributing rules," when the parties are domiciled in states with conflicting rules, "the law of the place of the tort will normally apply, unless displacing it will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system producing great uncertainty for litigants [internal quotation marks & citation omitted]." Schultz v Boy Scouts of America, Inc., 65 NY2d 189, 201 (1985). Here, California has no interest in protecting a New York newspaper from defending against a defamation claim in New York or in limiting the recoverable damages, if the newspaper were found liable. Accordingly, New York defamation and damages law applies. Inasmuch as the alleged defamation would be classified as libel per se, plaintiff need not show special damages. See Rall v Hellman, 284 AD2d 113 (1st Dept 2001).

Defendant's additional argument, that section 48a should apply because plaintiff expressly relied upon it in demanding that the New York Post retract the libel, lacks any basis. Although Dr. Kipper demanded, through his attorney, that the New York Post retract the libelous statements that it had published about him, he neither referred to § 48a expressly, nor referred to the terms set forth in that statute. See Exh. 36 to Kipper Deposition (Metcalf Aff., Exh. 3). Dr. Kipper's demand accordingly does not constitute a tacit consent or admission that California law applies. Neither can it be a basis for an assertion of judicial estoppel or estoppel by inconsistent position, because

Dr. Kipper never represented that California law was applicable to this New York defamation case.

Defendant contends that replacing the Los Angeles Times's sentence, quoted above, with the Article's statement "[l]ast week, the state medical board revoked Kipper's license ... " was the result of a simple mistake, and that, therefore, because Dr. Kipper is a public figure, he may not recover any damages because he cannot prove, by clear and convincing evidence, that the false statements were published with the knowledge that they were false, or with a reckless disregard of whether they were false. See Millus v Newsday, Inc., 89 NY2d 840 (1996), cert denied 520 US 1144 (1997); Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, cert denied 434 US 969 (1977).

Dr. Kipper is unquestionably a public figure. His detoxification practice has been written about extensively in the media; he has appeared as a doctor in several films, including one in which [*3]he portrays himself; he has appeared as a medical expert more than 100 times on television. Indeed, defendant notes, and Dr. Kipper does not dispute, that Dr. Kipper's website states that Dr. Kipper "has appeared on all major and local networks including CNN, FOX, ABC, NBC, and more as an expert commentator on issues relating to internal medicine, addiction, and health care." See http://www.davidkipper.com/about.html. as cited in defendant's papers. He is quintessentially "the publicized person [who] has taken an affirmative step to attract public attention." James v Gannett Co., 40 NY2d 415, 422 (1976); see also Maule v NYM Corp., 54 NY2d 880 (1981).

However, defendant has not presented evidence that proves, as a matter of law, that the false statements in the Article were published in good faith, the result of an inadvertent misreading or miscopying that would be considered an excusable mistake. The New York Post reporter who wrote the Article testified at his deposition that he did not believe that he had written the false statement that defendant published; that New York Post editors sometimes edit or change articles submitted by reporters; that the New York Post employs no fact checkers per se, because fact checking is "all of our jobs in a sense"; and that, in rewriting articles from wire services, New York Post reporters mostly shorten them, and change the lead paragraph "to make it more Post-like," that is, "less boring than the Los Angeles Times." See Kipper Aff., Ex F [Gittens EBT], at 9, 20-21; see also Metcalf Opp. Aff, Ex B [Gittens Aff. ¶ 4].^[FN1] The editor who reviewed the Article does not recall reviewing it. Accordingly, defendant's reliance upon Khan v New York Times Co. (269 AD2d 74 [1st Dept 2000]), is misplaced. In that case, the reporter who wrote two concededly libelous articles testified that she had misread two articles upon which she had relied. Here, by contrast, defendant has offered no evidence that the falsity in the Article, and its headline, was "more the product of misperception than fabrication." Mahoney v Adirondack Publ. Co., 71 NY2d 31, 40 (1987). Defendant has not met its burden of proof that, as a matter of law, that the Article's misstatements were published without knowledge of falsity and without a reckless disregard for the truth. Accordingly, defendant's motion for summary judgment against Dr. Kipper must be denied.

Plaintiffs' motion must also be denied. The evidence presented on these motions presents a factual question as to whether the New York Post acted in good faith in publishing the Article or whether it acted with knowledge of falsity or reckless disregard for the truth. As the United States Supreme Court has noted, "[t]he finder of fact must determine whether the publication was ... made in good faith. Professions of good faith will be unlikely to prove persuasive ... where a story is fabricated by the defendant ... ." St. Amant v Thompson, 390 US 727, 732 (1968). The credibility of the New York Post reporter's deposition testimony, that he does not know how the libelous statement was introduced into the Article, and of the New York Post editor's testimony, that he had no recollection of the Article, is a matter for the jury. The Court notes, however, that, even if the identity of the person or persons responsible for the Article's misstatements is unknown, that is not [*4]necessarily dispositive.^[FN2] It remains for a jury to determine, by clear and convincing evidence, whether the false statement in the Article was a fabrication by someone at the New York Post, or whether the New York Post published the falsehood with a reckless disregard for its truth or falsity. However, the jury might not be clearly convinced that the publication of the false statement was the result of anything more than error or negligence. Mere error or negligence is not sufficient to constitute the constitutional malice that a public figure must prove in order to prevail in a libel case against a media defendant. See New York Times Co. v Sullivan, 376 US 254 (1964); Millus v Newsday, Inc., 89 NY2d 840, supra. This case is not susceptible to summary determination on these motions.

Given the factual issue presented of how the misstatement found its way into the Article, and whether it resulted from deliberate falsification or reckless disregard of the truth, an element that plaintiff must prove by clear and convincing evidence, both plaintiffs' and the individual defendant's motions must be denied as against the individual plaintiff. Defendant's motion must be granted as to the P.C. only.

Accordingly, it is hereby

ORDERED that, in motion sequence no. 005, defendant's motion for summary judgment is granted only to the extent that the complaint by plaintiff "David A. Kipper, M.D., a Professional Corporation" only is severed and dismissed, and the Clerk is directed to enter judgment accordingly; and defendant's motion is otherwise denied, and the action by plaintiff "David A. Kipper, M.D." shall continue; and it is further

ORDERED that, in motion sequence no. 006, plaintiffs' motion for summary judgment is denied.

Dated: May 11, 2007ENTER:

New York, New York

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J.S.C.