BILL NUMBER:  S421

 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


 PURPOSE :
To protect the deceased from defamation.

 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
decedent as the result of a libel or slander which occurred after, but
within 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
organized 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 inseparable harm. At a public hearing
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-considered recommendations for preventing any similar
future abuse of our criminal process.
 LEGISLATIVE HISTORY :
2007/2008 - S.724  Remained in the Senate Committee on Codes
2005/2006 - S.226  Remained in the Senate Committee on Codes
2003/2004 - S.571  Remained in the Senate Committee on Codes
2001/2002 - S.1979 Remained in the Senate Committee on Codes

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect immediately and shall apply to a libel or
slander made on or after such effective date.