Opinion
March 15, 2001.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered January 11, 2000, which denied so much of defendant's post-trial motion as sought to set aside the jury verdict in favor of plaintiff, but granted the motion insofar as to reduce the total damage award to plaintiff from $3,000,000 to $400,000, unanimously modified, on the law, to vacate so much of the reduced damage award as awarded plaintiff attorneys' fees, thus reducing the total award to $250,000, and otherwise affirmed, without costs.
Susan C. Stanley, for plaintiff-appellant-respondent.
Douglas D. Aronin, for defendant-respondent-appellant.
Before: Ellerin, J.P., Wallach, Lerner, Saxe, JJ.
"Attorneys' fees are not usually compensable in the absence of specific statutory authority, or contractual obligation or incident to recovery for certain torts involving malice" (Flaks, Zaslow Co. v. Bank Computer, 66 A.D.2d 363, 365 [emphasis added], appeal dismissed 47 N.Y.2d 951). Although malice was proved in connection with the instant defamation action, it was not the sort of malice arising from disinterested malevolence (see, e.g., Avildsen v. Prystay, 204 A.D.2d 154) as would support an award of attorneys' fees. Here, plaintiff has demonstrated only a reckless disregard for the truth (constitutional malice) or a high degree of awareness of the complained of statements' falsity (see, Foster v. Churchill, 87 N.Y.2d 744, 752, quoting Liberman v. Gelstein, 80 N.Y.2d 429, 438; Present v. Avon Prods., Inc., 253 A.D.2d 183, 188-189, lv dismissed 93 N.Y.2d 1032). Thus, the award of attorneys' fees was improper. However, the remaining portion of the award to plaintiff to compensate him for damages other than attorneys' fees, did not, as reduced, materially deviate from what is reasonable compensation under the circumstances. Defendant's challenge to the court's charge to the jury as it related to the standard to be applied is unpreserved, and we decline to reach it. We have examined the parties' remaining contentions for affirmative relief and find them unavailing.