Cassini v. Advance Publs., Inc. , 4 N.Y.S.3d 4 ( 2015 )

Cassini v Advance Publs., Inc. (2015 NY Slip Op 01171)

Cassini v Advance Publs., Inc.

2015 NY Slip Op 01171

Decided on February 10, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 10, 2015
Tom, J.P., Friedman, Andrias, DeGrasse, Gische, JJ.

14184 108971/11

[*1] Marianne Nestor Cassini, Plaintiff-Appellant,

v

Advance Publications, Inc., et al., Defendants-Respondents, Maureen Orth, et al., Defendants.

Reppert Kelly, LLC, New York (Christopher P. Kelly of counsel), for appellant.

Davis Wright Tremaine, LLP, New York (Elizabeth A. McNamara of counsel), for respondents.

Order, Supreme Court, New York County (Lucy Billings, J.), entered April 19, 2013, which granted defendants' motion to dismiss the complaint, and denied plaintiff's cross motion pursuant to CPLR 306-b for an extension of time to serve the summons and complaint, unanimously affirmed, without costs.

Plaintiff failed to state a cause of action for defamation based on allegedly false and disparaging statements in an article published in the September 2010 issue of Vanity Fair ("Cassini Royale") that reports on plaintiff's secret marriage to the late designer, Oleg Cassini, and her conduct in litigation concerning

his estate. Contrary to plaintiff's contention, the allegedly defamatory statements, including a quoted statement that plaintiff and her sisters used to throw parties in the 1960s that were attended by many wealthy "older guys looking for action," do not imply that plaintiff was a prostitute and lacked sexual morals. Given the overall context in which the statements were made, a reasonable reader would not conclude that plaintiff was a prostitute or otherwise unchaste (see James v Gannett Co. , 40 NY2d 415, 419 [1976]; Morrow v Wiley , 73 AD2d 859 [1st Dept 1980]). Nor were the statements so "extreme and outrageous" that they would support an action for infliction of emotional distress (see Howell v New York Post Co. , 81 NY2d 115, 121 [1993]).

Given the complaint's lack of substantive merit and plaintiff's failure to demonstrate [*2]diligence in attempting to effect service, plaintiff failed to meet her burden of demonstrating that either good cause or the interests of justice support an extension of her time to serve defendants (CPLR 306-b; Leader v Maroney, Ponzini & Spencer , 97 NY2d 95, 104 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 10, 2015

CLERK