| Sassower v Gannett Co., Inc. |
| 2013 NY Slip Op 05687 [109 AD3d 607] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Elena Ruth Sassower et al., Appellants, v GannettCompany, Inc., et al., Respondents. |
—[*1] Satterlee, Stephens, Burke & Burke, New York, N.Y. (Mark A. Fowler of counsel),for respondents.
In an action, inter alia, to recover damages for libel, the plaintiffs appeal from (1) anorder of the Supreme Court, Suffolk County (Cohalan, J.), dated September 22, 2011,which granted that branch of the motion of the defendants Gannett Company, Inc., TheJournal News, Lohud.com, Henry Freeman, CynDee Royle, Bob Fredericks, and D. ScottFaubel which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint, and deniedthe cross motion of the plaintiff Elena Ruth Sassower for various relief, (2) a judgmentof the same court entered December 27, 2011, which, upon the order dated September22, 2011, is in favor of the defendants and against them, dismissing the complaint, and(3) an order of the same court dated April 23, 2012, which denied the motion of theplaintiff Elena Ruth Sassower, inter alia, for recusal, and to vacate the order datedSeptember 22, 2011. The notice of appeal from the order dated September 22, 2011, isdeemed also to be a notice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order dated September 22, 2011, is dismissed; and itis further,
Ordered that the appeal by the plaintiff Doris L. Sassower from the order dated April23, 2012, is dismissed, as that plaintiff is not aggrieved by that order; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the order dated April 23, 2012, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order dated September 22, 2011, must be dismissed[*2]because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on the appeal from that order are brought up forreview and have been considered on the appeal from the judgment (see CPLR5501 [a] [1]).
The plaintiffs commenced this action, inter alia, to recover damages for libel basedupon identical articles which appeared in the Journal News and on Lohud.com. Thedefendants Gannett Company Inc., the Journal News, Lohud.com, Henry Freeman,CynDee Royle, Bob Fredericks, and D. Scott Faubel (hereinafter collectively the Gannettdefendants) moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint,and the plaintiff Elena Ruth Sassower (hereinafter Elena) cross-moved for various relief.The Supreme Court granted that branch of the Gannett defendants' motion and deniedElena's cross motion. The Supreme Court also denied Elena's subsequent motion, interalia, for recusal and to vacate the order dated September 22, 2011.
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), " 'the courtmust afford the pleading a liberal construction, accept all facts as alleged in the pleadingto be true, accord the plaintiff the benefit of every possible inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory' " (Green v Gross & Levin, LLP,101 AD3d 1079 [2012], quoting Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704[2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
Here, the Supreme Court properly concluded that the complaint failed to state a causeof action alleging libel. The plaintiffs explicitly complained about the "characterization"of certain behavior on Elena's part. Thus, the language alleged to be libelous wasnonactionable opinion, rather than fact (see Sassower v New York Times Co., 48 AD3d 440[2008]).
The Supreme Court also properly dismissed the cause of action alleging "journalisticfraud." That cause of action, which alleged, in effect, that the articles failed to includeand recount certain information as desired by the plaintiffs was not actionable (see id.at 441).
The Supreme Court properly denied Elena's cross motion for various relief. Since therecord does not support a finding that the defendants' conduct was frivolous, the courtprovidently exercised its discretion in denying that branch of the cross motion which wasto impose sanctions against defense counsel (see 22 NYCRR 130-1.1). Similarly,as the record does not support a finding that defense counsel committed a substantialviolation of the Rules of Professional Conduct or a finding that defense counsel wasguilty of any deceit or collusion, the court properly denied those branches of Elena'scross motion which were to refer defense counsel to appropriate disciplinary authoritiesand to assess damages against defense counsel for deceit and collusion (seeJudiciary Law § 487 [1]). Moreover, the court properly denied that branch ofElena's cross motion which was to disqualify defense counsel for violation of rule 1.7 ofthe Rules of Professional Conduct (22 NYCRR 1200.0), because there is no support forher contention that defense counsel was a party to the proceeding by virtue of being adefendant (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7).
The Supreme Court properly denied Elena's motion, inter alia, for recusal and tovacate the order dated September 22, 2011. Absent a legal disqualification underJudiciary Law § 14, "the determination concerning a motion seeking recusal basedon alleged impropriety, bias, or prejudice is within the discretion and 'the personalconscience of the court' " (Daniels v City of New York, 96 AD3d 895, 895 [2012],quoting People v Moreno, 70 NY2d 403, 405 [1987]; see Schreiber-Cross v State of NewYork, 31 AD3d 425 [2006]). Here, Elena failed to set forth any proof of bias orprejudice on the part of the court which would have warranted recusal (see Daniels vCity of New York, 96 AD3d at 895; Schreiber-Cross v State of New York,31 AD3d at 425). Additionally, Elena failed to establish any grounds for vacating theorder dated September 22, 2011 (see CPLR 2221; 5015 [a] [3], [4]).
The plaintiffs' remaining contentions are without merit. Skelos, J.P., Angiolillo,Roman and Hinds-Radix, JJ., concur. [Prior Case History: 2011 NY Slip Op32872(U).]