Defendants contend that this judgment conclusively disposed of all of the plaintiff's claims and contentions in the instant suit, and especially since plaintiff's appeals from this judgment were dismissed. Plaintiff instituted two suits in the New York Supreme Court, one against W.P.I.X. and one against NTA, which were ordered consolidated for trial and the complaints dismissed on 4/3/61, 30 Misc.2d 17, 213 N.Y.S.2d 632, appeal dismissed 14 A.D.2d 846, Nov. 1961; and 11 N.Y.2d 876, 227 N.Y.S.2d 913, 182 N.E.2d 403 (Mar. 1962), cert. den. October, 1962, 371 U.S. 16, 83 S.Ct. 59, 9 L.Ed.2d 50. Another suit filed against defendant Paramount in the New York Supreme Court was dismissed by that Court on 1/22/63.
Like all contracts, an insurance contract "must be read as a whole" and "each part interpreted with reference to the whole." Fleischer v. W.P.I.X. Inc., 30 Misc.2d 17, 23 213 N.Y.S.2d 632, 640 (N.Y. Sup. Ct. 1961). "[S]ingle clauses cannot be construed by taking them out of their context and giving them an interpretation apart from the contract of which they are a part." Eighth Ave. Coach Corp. v. City of New York, 286 N.Y. 84, 89, 35 N.E.2d 907, 909 (N.Y. 1941).
Also application of the $15,000 requirement to the first relevant month is not so harsh as Scientific alleges, since that month was to be credited with profits of previous months subsequent to the closing but was not to be charged with losses for such months — a very favorable form of averaging. Scientific further contends, citing Fleischer v. W.P.I.X. Inc., 30 Misc.2d 17, 213 N.Y.S.2d 632 (S.Ct. N.Y. Co. 1961), that Plessey's interpretation of the average profit requirement renders meaningless the provision in paragraph 5(d) that full management control might also be assumed "if there have been three consecutive months of losses during that measuring year (excluding the first two months [April and May] thereof) . . ." since that language would permit losses in May, while the average profit provision would require at least a $15,000 profit. We do not find this argument to be compelling.
Although it is not necessary to consider the point, most if not all of Fleischer's allegations are also foreclosed to him on grounds of collateral estoppel. The rights and obligations of Paramount under the 1941 contract, as well as Fleischer's inability to recover for injuries suffered by his corporation, issues central to the instant case, were determined adversely to the plaintiff by the New York State courts in Fleischer v. W.P.I.X., Inc., 30 Misc.2d 17, 213 N.Y.S.2d 632, appeals dismissed, 14 A.D.2d 846 (1961), appeals dismissed, 11 N.Y.2d 876, 227 N.Y.S.2d 913, 182 N.E.2d 403, appeals dismissed, 371 U.S. 16, 83 S.Ct. 59, 9 L.Ed.2d 50 (1962). Although Paramount was not a party to the New York litigation, both this court and the New York Court of Appeals permit a prior judgment to be invoked defensively as against the unsuccessful party in the prior action, where the issues are the same and have been fully litigated.
In 1928, all the assets of FSI NY1 were distributed to FSI FL. On May 24, 1941, Paramount Pictures, Inc. (" Paramount" ) purchased all of the assets of the original FSI. FSI FL was dissolved in 1946. Fleischer v. W.P.I.X. Inc., 30 Misc.2d 17, 20, 213 N.Y.S.2d 632, 636 (N.Y.Sup.1961) (" [O]n May 16, 1946, Fleischer Studios [FSI FL] was dissolved by a Governor's Proclamation for failure to pay taxes, pursuant to a Florida statute." ).
Consequently, the law of New York is determinative as to the existence and construction of any contract between LCL and Alligator arising from these instruments. The New York law holds that generally none but a party to, or a third-party beneficiary of, a contract has the right to sue for breach of the contract. Fleischer v. W.P.I.X., Inc., 30 Misc.2d 17, 213 N.Y.S.2d 632, 643 (Sup.Ct. 1961), appeal dismissed 371 U.S. 16, 83 S.Ct. 59, 9 L.Ed.2d 50 (1962). Hence, the preliminary question which must be considered is whether or not LCL was a party or third-party beneficiary to the License Agreement.
If a picture so used is a clear and identifiable likeness of a living person, he or she is entitled to recover damages suffered by reason of such use, whether or not his or her appearance has altered through the passage of time. See, e. g., Hayden v. Bristol Myers Co., supra; cf. Fleischer v. WPIX, Inc., 30 Misc.2d 17, 213 N.Y.S.2d 632 (Sup.Ct. 1961); Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485 (1951); Jackson v. Consumer Publications, 169 Misc. 1022, 10 N.Y.S.2d 691, aff'd, 256 A.D. 965, 10 N YS.2d 634 (1939).
The former shareholder has no greater rights than the defunct corporation. Gordon v. Loew's Inc., 147 F. Supp. 398 (D.N.J. 1956); accord, U.S. Plywood-Champion Papers, Inc. v. Pan American Gyro-Tex Co., 345 F. Supp. 1 (N.D. Ill. 1972); Fleischer v. W.P.I.X Inc., 30 Misc.2d 17, 213 N.Y.S.2d 632 (Sup.Ct. 1961). Plaintiff's counsel argues that equity and justice demand the allowance of a remedy and assumes that the corporation's expired rights are revived in the former shareholders.
In order for the plaintiff's name or likeness to be considered as having been used for commercial purposes within the meaning of Civil Rights Law § 51, it is essential that there be some exploitation thereof either in, or as part of, the commercial announcement or in direct connection with the solicitation for business (see, Lahiri v Daily Mirror, 162 Misc. 776, 780). In other words, unless there is some connection made between the plaintiff's name or likeness and the defendant's commercial message, the fact that the medium in which the plaintiff's name and photograph appear is commercially sponsored should not deprive the defendant of the public interest use exception as a defense (Gautier v Pro-Football, Inc., 304 N.Y. 354, 358; see also, Delan v CBS, Inc., 91 A.D.2d 255, 259; Colyer v Fox Publ. Co., 162 App. Div. 297, 299-300; Fleischer v W.P.I.X. Inc., 30 Misc.2d 17, 33; Wallach v Bacharach, 192 Misc. 979, 980, affd 274 App. Div. 919; Savell, Right of Privacy — Appropriation of a Person's Name, Portrait or Picture for Advertising or Trade Purposes, Without Prior Written Consent: History and Scope in New York, 48 Alb L Rev 1 [1983]).
However, these statutes allowing a limited corporate existence subsequent to dissolution must be strictly construed as they are in derogation of the common law rule that upon dissolution a corporation was for all purposes extinct. Fleischer v. W.P.I.X., Inc., 30 Misc.2d 17, 213 N.Y.S.2d 632. It is obvious, then, that the corporation itself, once dissolved, could not maintain this suit. The fate of the stockholder's cause of action in a derivative suit is inexorably bound to the scope of rights enforceable by the corporation.