UPDATE: What's the Frequency Dan?

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Former CBS Evening News Anchor Dan Rather's dead $70 million breach of contract suit against the Eye Network (See "TUOL" post 9/29/09) will stay dead.

The N.Y. Court of Appeals yesterday denied Rather's motion for leave to appeal the dismissal of his case by the Appellate Division of the NY Supreme Court (Motion No. 2009-1196). Rather was assessed $100 costs and necessary reproduction disbursements. Not sure what HDNet is paying the former network news star, but Rather is probably good for it.

UPDATE: Court to Dan Rather: 'Courage-Your CBS Lawsuit Is Toast'

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The appellate division of the New York Supreme Court has tossed 75-year-old former anchor Dan Rather's $70 million lawsuit against CBS Corp and others. arising from Rather's participation in a  controveresial, ill-fated "60 Minutes II" story about former President George W. Bush's National Guard service.

In a unanimous seven-page decision written by Judge James Catterson, the appellate division held that Supreme Court Judge Ira Gammerman wrongly denied the defendants' motion to dismiss the breach of contract and breach of fiduciary duty claims in Rather's Complaint (Dan Rather v. CBS Corp., Viacom, Inc., et al., Case No. 603121/07). Rather sued in  Sept. 2007, alleging fraud, and breach of the covenant of good faith and fair dealing, along with the contract and fiduciary duty counts.  In July, Judge Gammerman restored the fraud count he had previously dismissed in September 2008 (see "TUOL" 7/22/09).

Writing for the Court, Judge Catterson concluded that CBS did not owe Rather a fiduciary duty and had not breached his contract by warehousing him after the error-laden Bush story ran, because Rather continued to be paid by CBS. Likewise, the Court ruled that Rather failed to prove fraud or that CBS had hindered his future business opportunities in its treatment of him.

Rather's counsel said Rather, who now works at HDNet, would appeal the ruling. A complete victory for the denizens of Black Rock.  As Rather's late colleague Walter Cronkite was wont to say: "That's the way it is."

Bad Day at Black Rock

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New York Supreme Court Judge Ira Gammerman yesterday breathed new life into former CBS anchor Dan Rather's $70 million lawsuit against CBS and Viacom.

Judge Gammerman restored the fraud claim in Rather's complaint that he previously tossed in September 2008, on the basis that the 75-year-old Rather could not prove damages arising from the defendants' conduct. Additionally, Gammerman ordered the defendants to turn over more than 3,000 documents to Rather's attorney as part of discovery.

Rather's counsel believe the documents may reveal evidence of efforts by CBS to influence the panel that investigated a controversial "60 Minutes" report about former President George W. Bush's Air National Guard record, which led to Rather's dismissal. Defense counsel unsuccessfully argued attorney-client privilege in attempting to avoid turning over documents, including Emails between the investigating panel and the law firm of K & L Gates that performed investigatory work for panel members.

Rather sued in September 2007, alleging his reputation and career were damaged by the panel's unfavorable report, which Rather said was biased. Former Attorney General and Republican Gov. of Pennsylvania Richard Thornburgh and ex-Associated Press head Louis D. Boccardi were panel members who examined the "60 Minutes" report.

Judge Gammerman accepted the fraud count in the amended complaint because Rather alleged damage, namely, a reduction in earnings since he lost his post as CBS Evening News Anchor and "60 Minutes" correspondent. Rather currently produces "Dan Rather Reports" for cable channel HDNet.

CBS and Viacom attorneys are expected to appeal Judge Gammerman's ruling.