Liu v. New York News Inc. , 183 A.D.2d 443 ( 1992 )

— Judgment, Supreme Court, New York County (Myriam J. Altman, J.), entered May 15, 1991, which dismissed the complaint, unanimously affirmed, with costs. Appeal from the order of same court, dated April 19, 1991, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously dismissed as subsumed within the appeal from the judgment, without costs.

In this action for libel and intentional infliction of emotional distress, plaintiff stipulated that the article in issue was not published with actual malice prior to defendant’s motion for summary judgment. On the motion, the IAS court properly found plaintiff to be a limited purpose public figure, and, given this stipulation, had no choice but to dismiss the action (Gertz v Robert Welch, Inc., 418 US 323; Hustler Mag. v Falwell, 485 US 46).

In response to the shooting of 11 people on December 23, 1982, plaintiff, as chairman and spokesperson for a Chinatown organization, called a press conference to say that the leader of a rival organization was behind the shootings, which were committed in an effort to gain control of territory from plaintiff’s organization. Plaintiff further stated that his organization could expand its territory at will. Clearly, plaintiff was attempting to project his power by using the media to thrust himself into the forefront of events. Thereafter, plaintiff was the subject of a magazine cover story and numerous press articles, including one by defendant, published in April 1984, containing many of the same assertions as are contained in the May 21, 1985 article sued upon in this action. Shortly after publication of the subject article, plaintiff’s attorney characterized plaintiff as a "highly visible and controversial” figure. In this posture, defendant clearly established plaintiff’s status as a limited purpose public figure as a matter of law (Gertz v Robert Welch, Inc., supra; Rosanova v Playboy Enters., 411 F Supp 440, affd 580 F2d 859). Concur — Sullivan, J. P., Carro, Wallach and Smith, JJ.