Cusack v. 60 Minutes Div. of CBS, Inc.
| Decision Date | 20 June 2012 |
| Docket Number | Motion Seq. No 010,Motion Seq. No 009,Index No. 600060/98 |
| Citation | 2001 NY Slip Op 30092 |
| Parties | LAWRENCE X. CUSACK, III, et al., Plaintiffs, v. 60 MINUTES DIVISION OF CBS, INC., CBS, INC., DON HEWITT, ED BRADLEY, MICHAEL RADUTZKY, JONATHAN H. WELLS, DUAYNE J. DILLON, SEYMOUR M. HERSH, ROBERT L. WHITE, JOHN DOE 1-5, and MARY DOE 1-5, Defendants. |
| Court | New York Court of Appeals Court of Appeals |
DECISION/ORDER
Motion sequence nos. 009 and 010 are consolidated for disposition.
In motion sequence no. 009, defendants CBS Broadcasting, Inc. ("CBS") (sued herein as "60 Minutes Division of CBS, Inc."), Don Hewitt, Ed Bradley, Michael Radutzky, Jonathan H. Wells and Duayne J. Dillon (collectively "the CBS defendants") move pursuant to CPLR § 3212(a), for summary judgment dismissing the second amended complaint. Defendant Robert L. White joins in the motion and seeks summary judgment dismissing the complaint against him on the same grounds.
Plaintiffs cross-move for an order: (i) pursuant to CPLR § 3212(f) allowing them to engage in discovery; or (ii) pursuant to CPLR §§ 2201 and 2214 staying this action for 90 days, so as to afford plaintiff Cusack an opportunity to move pursuant to 28 USC§ 2255 for a new criminal trial and/or dismissal of the indictment;1 (iii) granting them partial summary judgment on their first, fifth and sixth causes of action, which allege, respectively, fraud, breach of contract, and breach of the implied covenant of good faith and fair dealing; and (iv) permitting them to serve and file copies of Cusack's executed affidavit no later than five business days prior to service of defendants' reply papers.
In motion sequence 010, defendant Seymour M. Hersh moves for summary judgment dismissing the second amended complaint against him, and plaintiffs cross-move for the same relief that they seek in motion sequence no. 009.
This action arises out of a November 23, 1997 broadcast of 60 Minutes (the "Program") concerning a large body of documents (the "Cusack Papers" or "Documents") that purportedly implicated President John F. Kennedy, as well as certain other individuals, including Marilyn Monroe, Robert F. Kennedy and Joseph P. Kennedy, Sr., in various scandals. Plaintiffs Lawrence X. Cusack III, Jennifer Rush Cusack, and their company, Geneva Archives, Inc.("Geneva"), sold the Cusack Papers, through plaintiff Thomas G. Cloud (a dealer in rare documents), to plaintiff investors for more than $7 million, of which Cusack's share exceeded $5 million. The Program intimated that the Documents had been fabricated and suggested that Cusack might have forged them. Plaintiffs allege that the Program defamed them and libeled the Cusack Papers.
In addition, plaintiffs allege (although plaintiffs, other than the Cusacks, Cloud, Robert C. Losure, Gary F. Vick, and the companies that the Cusacks and Cloud control, lack standing to do so) that the CBS defendants failed to keep certain promises that they had made to the Cusacks, Cloud, Losure, and Vick about the Program, that Cusack and Cloud provided documents from the Cusack Papers, and that Cusack, Cloud, Losure, and Vick otherwise cooperated in the preparation of. the Program, in reliance upon those promises. Plaintiffs also allege that defendant Hersh breached a contract that he had entered into with Cusack and Cloud, and that he defamed plaintiffs during interviews on two CNBC television programs that were broadcast subsequent to the 60 Minutes Program.
Defendants Hewitt, Radutzky and Wells are employed by CBS and were involved in planning and preparing the Program. Dillon, an expert in the analysis of handwriting who was retained by CBS, and White, a collector of memorabilia associated with President Kennedy, were interviewed on the Program. Hersh was writing a book about the Kennedy Presidency and was eager to gain access to theCusack Papers. Cusack, in turn, was eager to have Hersh discuss the Documents in his forthcoming book because he anticipated that the publicity that would attend the publication of Hersh's book would greatly increase the value of the Documents. Hersh initially believed that the Documents were genuine, but he was subsequently persuaded that they had been fabricated.
On September 25, 1997, the ABC News program 20/20 broadcast a report in which Cusack was interviewed and in which the Cusack Papers were described as forgeries that had been perpetrated by Cusack. Claiming that Cusack had been "ambushed" by the 20/20 program, one of the investor plaintiffs herein, and an individual who was working as a paralegal in the office of Cusack's attorney, approached CBS in the hope that it would criticize the 20/20 report and present Cusack's and Cloud's view of the Cusack Papers.2
60 Minutes retained Dillon on the recommendation of the United States Postal Service and the FBI. After studying the documents provided by Cusack and Cloud and comparing the handwriting thereon to that on documents at the Kennedy Library, Dillon concluded that the documents that had been provided by plaintiffs were forgeries.3 White, whom plaintiffs had expected to vouch for the authenticity of the Cusack Papers (in conformance with his earlier opinion),stated on the Program (or was quoted as having stated) that while he had earlier opined that the handwriting on certain of the Documents was that of President Kennedy, he was not a forensic handwriting expert, and he had not examined any of the Documents under a microscope. When he was asked why Cusack and Cloud had presented him as the person who would certify that the handwriting on certain of the documents was authentic, White replied, "I can only say that desperate people at some point do desperate things." Hersh was neither interviewed nor quoted on the Program, but the Program reported that Hersh had deleted from his forthcoming book, The Dark Side of Camelot, the chapter that he had written on the basis of the Cusack Papers.
On April 30, 1999, a jury in the United States District Court for the Southern District of New York convicted Cusack on 13 counts of mail and wire fraud. United States v Cusack, 98 CR 691 (SDNY). In her Opinion and Order dated September 17, 1999, Judge Denise L. Cote, who had presided over the trial, explained that "[t]he evidence at trial conclusively demonstrated that all of the Cusack Documents are indeed fakes and were authored by Cusack." (66 F. Supp.2d 493, 498). While rejecting the prosecution's argument that Cusack obstructed justice by commencing this action, as well as a similar action against ABC in the Southern District of New York (Thomas G. Cloud, et al., v. ABC, Inc., et al., 97 Civ. 8702), which was subsequently dismissed by order of Judge John S. Martin, Jr. dated October 26, 1999, Judge Cote noted at the sentencinghearing held on September 17, 1999 that "the complaints are facially outrageous in light of the overwhelming evidence at trial that Mr. Cusack was the author of the documents at issue and that he had invented out of whole cloth a relationship between his father and President Kennedy, motivated by a desire to earn millions of dollars." Judge Cote sentenced Cusack to 115 months in prison and three years supervised release, and ordered him to pay full restitution to the ultimate purchasers of the Cusack Papers, in the approximate amount of $7 million.
The judgment was affirmed by the United States Court of Appeals for the Second Circuit on October 13, 2000. (229 F.3d 344).
Defendants contend that all of the plaintiffs are collaterally estopped from bringing their claims alleging defamation and trade libel, by virtue of Cusack's criminal conviction.
"Collateral estoppel, an equitable doctrine, is based upon the general notion that a party, or one in privity with a party, should not be permitted to relitigate an issue decided against it (citations omitted)." D'Arata v. New York Central Mutual Fire Insur. Co., 76 N.Y.2d 659, 664 (1990).
"The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination" (Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456 [1985]) and that the issues "have been necessarily decided in the prior proceeding" (Capital Tel. Co. v Pattersonville Tel. Co., 56 N.Y.2d 11, 17 [1982]). "[T]he party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action." Kaufman v. Eli Lilly & Co., supra at 456. See also, Color by Pergament v. O'Henry's Film Works, 278 A.D.2d 92, (1st Dep't 2000).
Plaintiffs contend that the conviction is not final, that Cusack's trial failed to meet minimum Constitutional requirements (as a result of prosecutorial misconduct and ineffective assistance of counsel on the part of Cusack's trial counsel), that Cusack's conviction on mail fraud and wire fraud charges did not necessarily entail a finding that Cusack had forged the Cusack Papers, and that, in any event, none of the plaintiffs (including Cusack) had any control over the litigation of the criminal charges against Cusack.
Plaintiffs' contention that Cusack's conviction is not final rests on the pendency of Cusack's appeal and his pending petition for a new trial pursuant to 28 USC § 2255.
However, as this Court has already noted, Cusack's appeal has since been determined pursuant to the decision of the United States Court of Appeals for the Second Circuit on October 13, 2000, affirming Cusack's conviction.
"In any event, it is well established that the pendency of an appeal does not affect the use of an order or judgment as an estoppel (citations omitted)." Matter of Capoccia, 272 A.D.2d 838, 847 (3rd Dep't 2000), lv. to app. dism'd, 95 N.Y.2d 887 (2000).
Similarly, the pendency of Cusack's petition for a new trial does...
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