        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

452
CA 11-01968
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


JOHN GISEL, PLAINTIFF-APPELLANT,
ET AL., PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

CLEAR CHANNEL COMMUNICATIONS, INC. AND ROBERT
LONSBERRY, DEFENDANTS-RESPONDENTS.


MICHAEL A. ROSENHOUSE, ROCHESTER, FOR PLAINTIFF-APPELLANT.

GREENBERG TRAURIG, LLP, ALBANY (MICHAEL J. GRYGIEL OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered December 7, 2010. The order granted the
motion of defendants for summary judgment, dismissed the complaint and
denied the cross motion of plaintiffs for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this defamation action seeking,
inter alia, damages based on statements made by defendant Robert
Lonsberry, the host of a radio talk show that aired on a station owned
by defendant Clear Channel Communications, Inc. The statements at
issue were made during an on-air discussion that Lonsberry had with
former plaintiff Jacqueline Inzinga the day after her brother, John
Gisel (plaintiff), was acquitted of criminally negligent homicide for
fatally shooting a man in a hunting accident. According to
plaintiffs, Lonsberry asked Inzinga “how it felt to have a brother who
was ‘a cold-blooded murderer’ ” and whether plaintiff “ ‘put a notch
in the stock of his gun as he kills people?,’ ” and Lonsberry told
Inzinga “that the hunting incident could not have been an accident . .
. .” In support of their motion for summary judgment dismissing the
complaint, defendants alleged that those comments were made in the
midst of a debate amongst Lonsberry and his callers regarding whether
plaintiff should have been held criminally liable for the death of the
other hunter, that the issue of plaintiff’s culpability for the
shooting had been discussed on Lonsberry’s show on several occasions
prior to the date on which he made the statements in question and that
plaintiff’s accident, prosecution and acquittal were widely covered by
media outlets in Western New York. We conclude that Supreme Court
properly granted the motion.
                                 -2-                           452
                                                         CA 11-01968

     We agree with the court that defendants met their burden of
establishing that each of Lonsberry’s statements at issue constituted
a nonactionable expression of pure opinion (see generally Gross v New
York Times Co., 82 NY2d 146, 151; 600 W. 115th St. Corp. v Von
Gutfeld, 80 NY2d 130, 139, rearg denied 81 NY2d 759, cert denied 508
US 910; Steinhilber v Alphonse, 68 NY2d 283, 286). Applying the four-
part test set forth in Steinhilber (68 NY2d at 292) and considering
“the over-all context in which the [statements] were made,” we
conclude that defendants established that a “ ‘reasonable [listener]
would [not] have believed that the challenged statements were
conveying facts about the . . . plaintiff,’ ” rather than opinions
(Brian v Richardson, 87 NY2d 46, 51, quoting Immuno AG. v Moor-
Jankowski, 77 NY2d 235, 254, cert denied 500 US 954). Because
Lonsberry’s statements were based on facts that were widely reported
by Western New York media outlets and were known to his listeners, it
cannot be said that his statements were based on undisclosed facts
(see Gross, 82 NY2d at 153-154; Lukashok v Concerned Residents of N.
Salem, 160 AD2d 685, 686). Moreover, none of the statements were
“capable of being objectively characterized as true or false”
(Steinhilber, 68 NY2d at 292). Further, the context in which the
statements were made supports the conclusion that a reasonable
listener would not have thought that Lonsberry was stating facts.
Lonsberry’s show used a call-in format and generally provided a forum
for public debate on newsworthy topics, and his statements were made
during an on-air debate with his listeners regarding plaintiff’s
culpability and whether the jury had properly acquitted plaintiff.
Lonsberry had engaged his listeners in similar debates regarding
plaintiff’s culpability on several previous occasions. In addition,
some of Lonsberry’s callers used “harsh and intemperate language,” and
the tone of Lonsberry’s statements was obviously intended to be
caustic and confrontational, rather than factual. We therefore
conclude that defendants established their entitlement to judgment as
a matter of law that the statements in question were “expression[s] of
[pure] opinion [that were] not actionable” (Wanamaker v VHA, Inc., 19
AD3d 1011, 1012-1013), and plaintiff failed to raise a triable issue
of fact in opposition to the motion (see generally Zuckerman v City of
New York, 49 NY2d 557, 562).

     Inasmuch as Lonsberry’s statements were nonactionable expressions
of pure opinion, we need not address plaintiff’s remaining
contentions.




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
