Stoianoff v. Gahona

Decision Date16 March 1998
Citation248 A.D.2d 525,670 N.Y.S.2d 204
Parties, 26 Media L. Rep. 2054, 1998 N.Y. Slip Op. 2613 Carroll B. STOIANOFF, Appellant, v. Ed GAHONA, etc., et al., Defendants, New York Times, Respondent.
CourtNew York Supreme Court — Appellate Division

Carroll B. Stoianoff, Briarcliff Manor, pro se.

Adam Liptak, New York City, for respondent.

Before SANTUCCI, J.P., and JOY, FRIEDMANN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages, inter alia, for collusion and conspiracy to deceive, the plaintiff appeals from (1) so much of an order of the Supreme Court, Westchester County (Silverman, J.), entered December 2, 1996, as granted the motion by the defendant New York Times pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against it, (2) an order of the same court entered March 26, 1997, which denied his motion to reargue, and (3) a judgment of the same court entered March 26, 1997, dismissing the complaint insofar as asserted against the defendant New York Times.

ORDERED that the appeal from the order entered December 2, 1996, is dismissed; and it is further,

ORDERED that the appeal from the order entered March 26, 1997, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The appeal from the intermediate order entered December 2, 1996, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).

The plaintiff responded to an advertisement located in the respondent's Sunday New York Times Book Review section which solicited manuscripts for publication. Thereafter, the plaintiff declined to have his manuscripts edited by a service recommended by the publisher to whom he sent the manuscripts. Suspecting that the publisher and editing service were, for all practical purposes, the same entity, and that the advertisement was not truly soliciting manuscripts for publication, but rather, soliciting for the use of editorial services for a fee, the plaintiff demanded the return of his manuscripts, only to find that they had been destroyed. The plaintiff then commenced this action.

Although on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) the narrow question is whether the complaint states a cognizable cause of action (see, Washington Ave. Assocs. v. Euclid Equip., 229 A.D.2d 486, 645 N.Y.S.2d 511), the allegations in the complaint cannot be vague and conclusory (see, Washington Ave. Assocs. v. Euclid Equip., supra; Schuckman Realty, Inc. v. Marine Midland Bank, 244 A.D.2d 400, 664 N.Y.S.2d 73). Here, accepting the alleged facts as true and giving the plaintiff every possible favorable inference (see, Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Hirschhorn v. Hirschhorn, 194 A.D.2d 768, 599 N.Y.S.2d 613), the facts allege nothing more than negligence insofar as concerns the respondent. The allegations in support of the causes of action sounding in collusion,...

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