CUSACK III v. 60 MINUTES DIVISION OF CBS INC (2002)

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about June 20, 2001, and judgment, same court and Justice, entered August 10, 2001, which, inter alia, granted defendants-respondents' motion for summary judgment and dismissed the complaint as against them, unanimously affirmed, with costs.   Defendants are also awarded reasonable attorneys' fees on the appeal, pursuant to 22 NYCRR § 130-1.1, and the matter is remanded for a hearing to ascertain the amount thereof and for entry of judgment in that amount against plaintiff Lawrence X. Cusack, III and in favor of defendants.

 While the federal determination that the so-called JFK Papers are not authentic (see United States v. Cusack, 66 F.Supp.2d 493, affd. 229 F.3d 344, habeas petition denied 2001 WL 1568808, 2001 U.S. Dist LEXIS 20358) does not collaterally estop the present plaintiffs, other than Cusack, from litigating the issue of the papers' authenticity, the present action of the non-estopped plaintiffs was nonetheless properly dismissed since the record demonstrates overwhelmingly that the papers in question are forgeries and plaintiffs have failed to raise any issue of fact to the contrary.   Having failed to raise any triable issue as to the authenticity of the subject documents, the non-estopped plaintiffs have no sustainable claim of damages attributable to the complained-of broadcast;  their damages are entirely attributable to the circumstance that the papers purchased by them are demonstrably inauthentic (see SRW Assocs. v. Bellport Beach Prop. Owners, 129 A.D.2d 328, 517 N.Y.S.2d 741).   In any event, plaintiffs' causes of action are unsustainable for numerous additional reasons, and there can be no need for additional discovery.   We have considered all of plaintiffs' remaining arguments and find them unavailing.

 An award of costs pursuant to 22 NYCRR § 130-1.1 against plaintiff Lawrence Cusack is appropriate, since he has refused to discontinue a completely meritless action despite numerous prior adverse determinations (see Skolnick v. Goldberg, 297 A.D.2d 18, 746 N.Y.S.2d 296;  and see e.g. Murray v. Natl. Broadcasting Co., 214 A.D.2d 708, 711-712, 626 N.Y.S.2d 810).