The IAS court was correct in dismissing plaintiff's action for defamation because plaintiff cannot raise a triable issue as to the falsity of defendants' factual assertions (Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 245, cert denied 500 U.S. 954). The claim based on the newspaper article published on November 8, 1997 was properly dismissed upon a finding that the central premise of the article was factually true. The article stated that "[t]he Manhattan district attorney's office is investigating millionaire developer Abe Hirschfeld for allegedly plotting to kill a long-time business partner [Mr. Stahl]", and this was confirmed by Justice Newton's Certification that on the day the newspaper article was published, a Grand Jury was hearing and receiving "evidence in connection with allegations that Abraham Hirschfeld may have been involved in a plot to kill Stanley Stahl".
The appeals from the orders authorizing this Certification have been rendered academic by the issuance of the Certification. The appeal from Justice Newton's order is also untimely (CPLR 5513). Were we to reach the merits, we would find that the Certification's limited disclosure of Grand Jury proceedings was appropriate under the circumstances.
Nor can an action for defamation be maintained on the basis of the editorial published on November 25, 1997, which made a passing reference to plaintiff. As the motion court correctly held, the only pure statement of fact regarding plaintiff was the true description of him as "indicted." At the time, plaintiff was under indictment for tax fraud.
Plaintiff's claims of emotional distress were properly dismissed, since they "fall within the ambit of other traditional tort liability which, in this case, is reflected in plaintiff's causes of action sounding in defamation" (Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 263). We have considered and rejected plaintiff's other contentions.
Defendants' motion for sanctions should be granted against plaintiff, as this appeal's lack of legal or factual basis should have been apparent to plaintiff from the outset (22 NYCRR 130-1.1 [c]; Minister, Elders Deacons of Reformed Protestant Dutch Church v. 198 Broadway, Inc., 76 N.Y.2d 411). At the time that he filed this appeal, if not sooner, plaintiff was well aware that he had been indicted both for tax fraud and for criminal solicitation, and that the articles' statements about him were true and non-defamatory. Plaintiff is therefore directed to pay defendants' expenses and attorneys' fees for this appeal, as well as for the hearing at which the amount of sanctions will be determined.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.