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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
ntiff's company because they did not possess a high level of general managerial authority in relation to the nature and operation of the plaintiff's business." (Orange and Rockland Utilities 292 AD2d at 581).
The second New York Court of Appeals case to address the issue, decided after Cleghorn, is Corrigan v. Bobbs- Merrill Co (228 NY 58 ). In that case, a libel case, the issue before the Court was whether the plaintiff had established by sufficient evidence his entitlement to punitive damages against a defendant publishing company that had published a libelous novel. In its ruling, the Court stated that, to establish entitlement to punitive damages, the plaintiff must show that defendant published the defamatory statement with malice, as defined by ill will towards defendant or conscious indifference to the harm publication of the novel may cause and that plaintiff must establish defendant's malice by a "fair preponderance of the evidence." (Id). The court cited no authority for this rule and made no mention of the higher standard it had previously set forth in Cleghorn. The Appellate Division, Fourth Department and the United States District Court for the Southern District of New York have cited Corrigan to hold that the relative standard for punitive damages is a preponderance of the evidence. (In re Seventh Judicial District Asbestos Litigation, 190 AD2d 1068, 1069 [4th Dept 1993]; Greenbaum, 979 F Supp at 982).
In Greenbaum, the court noted the inconsistency between Cleghorn and Corrigan and concluded that a preponderance of the evidence standard was the correct standard on which to instruct the jury for a punitive damages claim arising out of sexual harassment cause of action. In Greenbaum, the court analyzed the contradictory Court of Appeals rulings and made the following two observations: first, the court in Cleghorn seemed more concerned with the substantive standard of conduct necessary to establish entitlement to punitive damages and less with the quality of evidence necessary to establish that conduct; second, Corrigan was decided more than forty years after Cleghorn. (Greenbaum, 979 F. Supp at 977-978). The court concluded that Corrigan should control, if for no other reason than it was the more recently decided of the two. (Id.at 978).
The court, in Greenbaum, went on to state another more compelling reason why the rule the "preponderance of the evidence" is the appropriate standard. The Court observed that, under New York law, a claim for punitive damages is "inextricably linked to the underlying cause of action" and cannot stand on its own. (Id. at 982; citing Rocanova v. Equitable Life Assurance Society of the United States, 83 NY2d 603, 616-617 .) Accordingly, the Court in Greenbaum concluded that the level of proof necessary to establish punitive damages must be the same as the level required to establish the underlying claim, as it would make little sense to require a plaintiff to show proof of certain damages by clear and convincing evidence and other damages by a mere preponderance of the evidence. (Greenbaum, 979 F Supp at 982). The Greenbaum Court cited New York libel cases that contained punitive damage elements to illustrate this point. In Corrigan and Frechette v. Special Magazines Inc., (285 AD 174, 176-177 [3rd Dept 1954]), the courts held that entitlement to punitive damages on a claim for libel must be shown by a preponderance of the evidence. Both of these cases were decided before the United States Supreme Court issued its decision in New York Times Co. v. Sullivan (376 US 254, 280 ), which required that libel must be established by clear and convincing evidence. In Mahoney v. Adirondack Publishing Company, (71 NY2d 31, 40 ) the New York Court of A
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