Lawton, J. (dissenting). I respectfully dissent. Defendant contends that the trial court improperly instructed the jury that Channel 7’s 6 and 11 o’clock broadcasts contained false statements as a matter of law. The majority rejects that contention, concluding that the statement in defendant’s retraction that "[t]he F.B.I. earlier today said and confirmed the victim was Prozeralik” was false because no witness testified that the F.B.I. "named Prozeralik as the victim” of the attack. That conclusion ignores the testimony by reporter Cindy DiBiasi that, when she asked F.B.I. Agent Thurston whether he could confirm that Prozeralik was the victim, he replied, "Okay. You can go with that unless I call you back.” If one credits DiBiasi’s testimony, Thurston’s response to DiBiasi’s question demonstrated agreement with the reporter’s statement and advised her, i.e., stated and confirmed, that the victim was Prozeralik. Although Thurston did not necessarily *187state that "Prozeralik was the victim” of the attack, the import of DiBiasi’s testimony was that Thurston confirmed that Prozeralik was the victim. By ruling as a matter of law that the 6 and 11 o’clock broadcasts were false, Supreme Court removed from the jury’s consideration the crucial issue of the substance of the Thurston-DiBiasi conversation. In doing so, the court usurped the jury’s responsibility to resolve issues of credibility and seriously undermined DiBiasi’s credibility. Because the resolution of the issue of DiBiasi’s credibility was inextricably linked with all plaintiffs causes of action, a new trial is required.
Additionally, I conclude that plaintiff failed to meet his burden of proving by clear and convincing evidence that defendant’s 6 and 11 o’clock retractions were made with actual malice. At the time of the 6 and 11 o’clock broadcasts, Channel 7’s news director, Steven Ridge, had been advised that plaintiff was not the victim of the assault. In those broadcasts, that fact is keynoted when it was stated, "First, the victim is not, and I repeat, is not, John Prozeralik, the operator of John’s Flaming Hearth Restaurants.” The broadcasts went on to state, however, that "[t]he F.B.I. earlier today said and confirmed the victim was Prozeralik”. At the time of the 6 and 11 o’clock broadcasts, Ridge was aware that Agent Thurston had denied having ever confirmed to DiBiasi that Prozeralik was the victim. Ridge also testified, however, that DiBiasi insisted that Thurston had confirmed to her that Prozeralik was the victim. Ridge further testified that he believed that Thurston had misled DiBiasi. Given those circumstances, plaintiff failed to prove by clear and convincing evidence that Ridge believed that his statement that the F.B.I. had earlier confirmed that plaintiff was the victim was inaccurate at the time he published it. Plaintiff failed, therefore, to establish actual malice (see, e.g., Bose Corp. v Consumers Union, 466 US 485, 511-513; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 383, cert denied 434 US 969), and his fourth and fifth causes of action, arising from the 6 and 11 o’clock broadcasts, must be dismissed.
Regarding the jury’s award of damages, I conclude that the jury’s award of $4 million for damages to plaintiffs reputation and for his humiliation and mental anguish is excessive. The record establishes that the broadcasts concerning plaintiff immediately made him the "talk of the town,” but that notoriety quickly dissipated. Indeed, the record shows that public discussion quickly shifted to plaintiffs defamation ac*188tion against defendant. It further shows that most individuals who heard the broadcasts did not believe that plaintiff was involved in organized crime. Given those circumstances, although plaintiff was a respected business and civic leader, the jury’s $4 million award for humiliation, damage to reputation and mental anguish deviated materially from that which would be reasonable compensation and was excessive (see, CPLR 5501 [c]; see, e.g., Dalbec v Gentleman’s Companion, 828d 921 [2d Cir 1987]).
Nor can I agree with the majority’s upholding the jury’s award of $10 million in punitive damages. A question exists whether punitive damages can be awarded in the absence of proof of common-law malice, i.e., proof that defendant’s actions were based on spite or ill will with a desire to harm the plaintiff (see, Mahoney v Adirondack Publ. Co., 71 NY2d 31, 41; Wood v Lee, 41 AD2d 730, 731). Here, the record is devoid of any proof of common-law malice. In any event, I conclude that the award is excessive. An award of punitive damages in a libel case involving a public figure is subject to strict judicial scrutiny in view of its inhibiting effect on the news media (see, Gertz v Robert Welch, Inc., 418 US 323, 350). An award of $10 million in this case is unconscionable and dramatically exceeds awards made in comparable defamation actions brought by public figures in New York (see, e.g., Goldwater v Ginzburg, 414d 324 [2d Cir], cert denied 396 US 1049; Maule v NYM Corp., 54 NY2d 880; Dattner v Pokoik, 81 AD2d 572, appeal dismissed 54 NY2d 750; Faulk v Aware, Inc., 19 AD2d 464, affd 14 NY2d 899). Because the jury’s $10 million punitive damage award bears no reasonable relation to the harm done, nor to the flagrancy of the conduct causing it (see, Rupert v Sellers, 48 AD2d 265, 269; I.H.P. Corp. v 210 Cent. Park S. Corp., 16 AD2d 461, 467, affd 12 NY2d 329), and because of its inhibiting effect on the news media (see, Gertz v Robert Welch, Inc., supra), it is excessive. To hold otherwise would be to disregard our duty to safeguard " 'the free press against undue interference’ ” (Immuno AG. v Moor-Jankowski, 77 NY2d 235, 249, cert denied — US —, 114 L Ed 2d 713, quoting O’Neill v Oakgrove Constr., 71 NY2d 521, 529).
Callahan, J. P., and Boehm, J., concur with Green, J.; Lawton, J., dissents and votes to reverse in a separate opinion in which Doerr, J., concurs.
Judgment affirmed, with costs.