Opinion
Index No. 155395/2020
06-24-2022
Vincent Landwehrle, Plaintiff, v. Tom Bianchi, VOGT GALLERY LLC, doing business as JOHANNES VOGT GALLERY, and DAMIANI EDITORE, Defendants.
For Plaintiff Daniel Szalkiewicz & Associates, P.C. Daniel Szalkiewicz, Esq., of counsel For Defendant Tom Bianchi Tom Bianchi, pro se
Unpublished Opinion
For Plaintiff Daniel Szalkiewicz & Associates, P.C. Daniel Szalkiewicz, Esq., of counsel
For Defendant Tom Bianchi Tom Bianchi, pro se
John J. Kelley, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 were read on this motion to/for DISMISSAL.
I. INTRODUCTION
In this action, inter alia, to recover damages for defamation, negligence, negligent infliction of emotional distress, invasion of privacy under New York, New Jersey, and California law, and pursuant to Civil Rights Law §§ 50, 51, and 52-b, 18 USC §2252(A), and N.J. Stat. 2A:58D-1, the defendant Tom Bianchi moves pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action. Bianchi also moves to dismiss the first, second, and third causes of action on the ground that those claims are time-barred (see CPLR 3211[a][5]). The plaintiff opposes the motion. The motion is granted to the extent that the fourth cause of action (common-law invasion of privacy) and sixth cause of action (statutory usurpation of publicity rights) are dismissed, and the motion is otherwise denied.
II. DISCUSSION
The crux of the action is that, beginning in 1980, when the plaintiff was 17 years of age and living in New Jersey, he began a relationship with Bianchi in Greenwich Village. Also beginning in 1980, Bianchi, a well-known photographer of nude male models who is 18 years older than the plaintiff, took numerous photographs of the plaintiff, both naked and partially clothed, over a period of several years. The plaintiff alleged that Bianchi shared some, but not all, of the photographs with him. He now alleges that, in 2019, the defendant publisher, Damiani Editore, published a hardcover book authored and containing numerous photographs by Bianchi, entitled 63 E 9th Street: NYC Polaroids 1975-1983, that included numerous nude and other photographs of the plaintiff that Bianchi took between 1980 and 1983. The plaintiff asserted that neither Bianchi nor Damiani Editore obtained his prior written consent to publish those photographs. He claimed that he thus is entitled to recover damages pursuant to several New York, New Jersey, and California statutes and that, inasmuch as some of the photographs depicted him as a 17-year-old, he is also entitled to recover pursuant to a federal statute prohibiting the circulation of child pornography. The plaintiff also asserts causes of action under several common-law theories of recovery.
A. CPLR 3211(a)(7) - Failure to State a Cause of Action
1. Standard Applicable to CPLR 3211(a)(7) Motions
When assessing the adequacy of a pleading in the context of a motion to dismiss under CPLR 3211(a)(7), the court's role is "to determine whether [the] pleadings state a cause of action" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144, 151-152 [2002]). To determine whether a claim adequately states a cause of action, the court must "liberally construe" it, accept the facts alleged in it as true, accord it "the benefit of every possible favorable inference" (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881 [2013]; Simkin v Blank, 19 N.Y.3d 46 [2012]), and determine only whether the facts, as alleged, fit within any cognizable legal theory (see Hurrell-Harring v State of New York, 15 N.Y.3d 8 [2010]; Leon v Martinez, 84 N.Y.2d 83 [1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267 [1st Dept 2004]; CPLR 3026). "The motion must be denied if from the pleading's four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d at 152 [internal quotation marks omitted]; see Leon v Martinez, 84 N.Y.2d at 87-88; Guggenheimer v Ginzburg, 43 N.Y.2d 268 [1977]).
2. First Cause of Action - N.J. Stat. 2A:58D-1
N.J. Stat. 2A:58D-1 provides, in pertinent part, that
"An actor who, in violation of section 1 of P.L.2003, c.206 (C.2C:14-9), discloses any photograph, film, videotape, recording or any other reproduction of the image of another person who is engaged in an act of sexual penetration or sexual contact, the exposed intimate parts of another person, or the undergarment-clad intimate parts of another person shall be liable to that person, who may bring a civil action in the Superior Court. For purposes of this section: (1) "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise, offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not."
Bianchi contended that the plaintiff cannot commence an action under New Jersey law in the courts of New York and, thus, no cause of action lies. While the statute authorizes the commencement of an action in the New Jersey Superior Court, its language is permissive rather than restrictive, and thus does not explicitly prohibit an action being bought elsewhere (see A & G Research, Inc. v GC Metrics, Inc., 19 Misc.3d 1136 [A], 2008 NY Slip Op 51016[U], *17 [Sup Ct, Westchester County 2008]). Moreover, "a statute or rule of another state granting the courts of that state exclusive jurisdiction over certain controversies, does not divest the New York courts of jurisdiction over such controversies" (Sachs v Adeli, 26 A.D.3d 52, 55 [1st Dept 2005]).
In any event, the plaintiff's complaint articulates the requisite elements of the cause of action created by the statute by alleging that he is a lifelong resident of New Jersey, that six of the images depict him wearing only a jockstrap, and that one image shows him fully naked. The plaintiff also alleged that Bianchi published at least one image of the plaintiff on the internet, and disseminated the images to media source for purposes of promoting the sale of Bianchi's book. Thus, the plaintiff can assert this cause of action under New Jersey law in a New York court.
3. First, Second, and Third Causes of Action-Statute of Limitations
On a motion pursuant to CPLR 3211(a)(5) to dismiss a cause of action as time-barred, "a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made," the burden shifts to the plaintiff to raise triable issue fact as to "whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period" (Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 A.D.3d 530, 531 [1st Dept 2020], quoting Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 1085-1086 [2d Dept 2016]; see Murray v Charap, 150 A.D.3d 752 [2d Dept 2017]; Williams v New York City Health & Hosps. Corp., 84 A.D.3d 1358 [2d Dept 2011]; Rakusin v Miano, 84 A.D.3d 1051 [2d Dept 2011]).
New Jersey law provides that,
"Except as otherwise provided by law, every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued;"(N.J. Stat. 2A:14-2). Likewise, California law provides that,
"Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.(Cal. Civ. Proc. Code § 335.1). Bianchi contended that the plaintiff failed timely to assert a claim under N.J. Stat. 2A:58D-1 (first cause of action), a claim under the New Jersey law invasion of privacy, based on intrusion upon seclusion (second cause of action), and under California Civil Code § 1708.85(a) (third cause of action), asserting that this action was commenced on July 15, 2021, and thus after the expiration of the relevant limitations periods. Bianchi contends that the action was untimely because the book was published on May 21, 2019, and the plaintiff alleged in his complaint that he first became aware of the book in June 2019. Contrary to Bianchi's contention, however, the plaintiff filed a summons with notice on July 15, 2020, not on July 15, 2021. CPLR 304(a) states that "an action is commenced by filing a summons and complaint or summons with notice in accordance with rule twenty-one hundred two of this chapter." Thus, not only was the plaintiff's filling of a summons with notice sufficient under New York's rules of practice, but the action was commenced approximately one year and one month after he became aware of the book's existence, and nearly one year and two months after the book's publication. Hence, the plaintiff's first, second, and third causes of action were interposed well within the two-year statutes of limitations applicable to claim asserted pursuant to New Jersey and California Law.
The court notes that Bianchi cites Cal. Civ. Proc. Code § 340(c) as the relevant statute of limitations. That statute reads as follows:
"Within one year:
...
"An action for libel, slander, false imprisonment, seduction of a person below the age of legal consent, or by a depositor against a bank for the payment of a forged or raised check, or a check that bears a forged or unauthorized endorsement, or against any person who boards or feeds an animal or fowl or who engages in the practice of veterinary medicine as defined in Section 4826 of the Business and Professions Code, for that person's neglect resulting in injury or death to an animal or fowl in the course of boarding or feeding the animal or fowl or in the course of the practice of veterinary medicine on that animal or fowl."Cal. Civ. Proc. Code § 340, however, was amended in 2002, when Cal. Civ. Proc. Code § 335.1 was enacted, enlarging the statute of limitations in all tort actions from one to two years (see 2002 Cal ALS 448, 2002 Cal SB 688, 2002 Cal Stats, ch 448). In any event, even if the one-year limitations period were to apply, the courts in New York were closed between March 17, 2020 and June 10, 2020 due to the COVID-19 pandemic, with all filings suspended between March 22, 2020 and May 5, 2020. Moreover, all service and filing deadlines in pending actions, including limitations perids, were tolled between March 20, 2020 and November 3, 2020 (see L 2020, ch 23, § 2; Executive Law § 29-a; Executive Order 202.8, Executive Order 202.67; Brash v Richards, 195 A.D.3d 582 [2d Dept 2021]). Consequently, even if a one-year limitations period were applicable, it would have been tolled by the then-applicable Executive Order, and the plaintiff's filling of the summons with notice on July 15, 2020 would have been timely. Thus, the plaintiff's third cause of action was timely interposed.
Although Bianchi purported to move to dismiss the second and third causes of action for failure to state a cause of action, he made no argument in his motion papers supporting that request for relief. Rather, his discussion of those causes of action was limited to the timeliness of those claims.
4. Fourth Cause of Action - Common-Law Invasion of Privacy
New York does not recognize a common-law right of privacy (see Hampton v Guare, 195 A.D.2d 366, 366 [1st Dept 1993]; Maxwell v N.W. Ayer, Inc., 159 Misc.2d 454, 457 [Sup Ct, NY County 1993]). Nonetheless, a statutory right to privacy does exist under Civil Rights Law §§ 50 and 51, limited to the protection of publicity rights (see Stephano v News Group Publs., 64 N.Y.2d 174, 182 [1984]). Specifically, the relevant statute provides that "[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained... may maintain an equitable action in the supreme court of this state" for an injunction and for damages (see Civil Rights Law § 51). Plaintiff's fourth cause of action failed to allege that the pictures in Bianchi's book were used for trade or advertising purposes and, thus, is insufficient to state a cause of action pursuant to Civil Rights Law § 51 (see Baumblatt v Battalia, 134 A.D.2d 226, 228 [2d Dept 1987]; Kiss v County of Putnam, 59 A.D.2d 773 [2d Dept 1977]; Pittera v Parade Publs., Inc., 15 A.D.2d 882, 882 [1st Dept 1962]). Consequently, to the extent that his broadly pleaded fourth cause of action was intended to include claims pursuant to Civil Rights Law § 51, the plaintiff failed to state a cause of action to recover for violation of the limited statutory right to privacy under New York law. Moreover, as discussed below, to the extent that the fourth cause of action seeks to recover under Civil Rights Law § 51, the "works of art" exemption also defeats that claim.
While New Jersey common law recognizes various causes of action relating to the right to privacy, the portion of the plaintiff's fourth cause of action that alleges that, "[b]y publishing the pictures in the book, on the internet, to media sources who then went onto republish them, and in The Vogt Gallery, the Defendants invaded Plaintiff's privacy, causing him harm," is insufficient under New Jersey law as well. The four types of invasions of privacy recognized under New Jersey law are,
(1) intrusion (e.g., intrusion on plaintiff's physical solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping, or prying into personal affairs); (2) public disclosure of private facts (e.g., making public private information about plaintiff); (3) placing plaintiff in a false light in the public eye (which need not be defamatory, but must be something that would be objectionable to the ordinary reasonable person); and (4) appropriation, for the defendant's benefit, of the plaintiff's name or likeness.(Rumbauskas v Cantor, 138 N.J. 173, 180, 649 A.2d 853, 856 [1994] [citation omitted]; see Restatement 2d of Torts, § 652B-E). The plaintiff failed to tailor his fourth cause of action to any of the invasions of privacy prohibited by New Jersey common law. In any event, the plaintiff's second cause of action properly pleaded the elements of invasion of privacy, based on intrusion upon seclusion (see Restatement 2d of Torts, § 652B; Hennessey v Coastal Eagle Point Oil Co., 129 N.J. 81, 94-95, 609 A.2d 11, 17 [1992]; Castro v NYT Tel., 384 N.J. Super 601, 609, 895 A.2d 1173, 1177 [App Div 2006]). Thus, the plaintiff's fourth cause of action must be dismissed for failure to state a cause of action.
5. Fifth Cause of Action - 18 USC §2252(A )
18 USC §2252(A) governs activities relating to material constituting or containing child pornography, and states, in pertinent part that,
"Any person who knowingly
"advertises, promotes, presents, distributes, or solicits through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains-
"(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
"(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;
"shall be punished as provided in subsection (b)."
Moreover, the statute defines a "minor" as any person under the age of 18 years (see 18 USC § 2256). In his complaint, the plaintiff alleged that he was 17 years of age when Bianchi first began photographing him. He further alleged that one or more of the images in Bianchi's book depict him nude or nearly nude when he was 17 years of age, and that, in combination with the book's prologue, the images are sexually suggestive.
Bianchi contended that this cause of action should be dismissed because the complaint conflicts with an affidavit of merit previously filed by the plaintiff, in which the plaintiff stated" to my recollection, Bianchi started photographing me in various states of undress when I was 17" (emphasis added). Bianchi asserted that, as such, the complaint did not provide an affirmed statement of fact with respect to the plaintiff's true age at the time that Bianchi allegedly photographed him. Contrary to Bianchi's contention, the plaintiff use of the qualifying phrase "to my recollection" does not undermine the evidentiary value of the statement (see Carboy v Cauldwell-Wingate Co., Inc., 43 A.D.3d 261 [1st Dept 2007]). Moreover, Bianchi offered no evidence to refute the plaintiff's allegations in this respect, beyond his reference to the plaintiff's affidavit, which would not qualify as documentary evidence even if Bianchi were seeking relief pursuant to CPLR 3211(a)(1) (see Granada Condominium III Assn. v Palomino, 78 A.D.3d 996 [2d Dept 2010]; Suchmacher v Manana Grocery, 73 A.D.3d 1017 [2d Dept 2010]; Fontanetta v John Doe 1, 73 A.D.3d 78, 85-86 [2d Dept 2010]). Thus, Bianchi's contentions are insufficient to warrant dismissal of the fifth cause of action, and the court concludes that the plaintiff stated a cause of action under the federal law.
6. Sixth Cause of Action - Publicity Rights (NY, NJ, CA)
Civil Rights Law § 51 states, in pertinent part,
"Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article."
The courts, however, have consistently held that the privacy statute should not be construed to apply to publications regarding newsworthy events and matters of public concern (see Howell v NY Post Co., 81 N.Y.2d 115, 123 [1993]; Finger v Omni Publs. Intl., 77 N.Y.2d 138, 141-142 [1990]; Stephano v News Group Publs., 64 N.Y.2d 174, 184 [1984]; Foster v Svenson, 128 A.D.3d 150, 156 [1st Dept 2015]). Specifically, the courts have determined that such publications are "not deemed strictly for the purpose of advertising or trade within the meaning of the privacy statute" (Foster v Svenson, 128 A.D.3d 150, 156 [1st Dept 2015]; see Arrington v New York Times Co., 55 N.Y.2d 433, 440 [1982]). Furthermore, the advertising and trade provision of the privacy statute was drafted with the First Amendment to the United States Constitution in mind, and while the newsworthiness and public concern exemptions focus on protecting the press's dissemination of ideas that have informational value, that exemption has been applied to other forms of First Amendment speech, such as literary and artistic expression (see Foster v Svenson, 128 A.D.3d at 156). Consequently, works of art have been found to fall outside the prohibitions of the privacy statute (see id. at 157; see also Altbach v Kulon, 302 A.D.2d 655, 658 [3d Dept 2003]; Nussenzweig v DiCorcia, 11 Misc.3d 1051 [A], 2006 NY Slip Op 50171[U] [Sup Ct, NY County 2006], affd 38 A.D.3d 339 [1st Dept 2007]). Therefore, when a plaintiff's name, portrait, picture, or voice is used in works of art without written consent, there is no recourse pursuant to Civil Rights Law § 51 (see Miczura v Knowles, 2015 NY Slip Op 32351[U], *3 [Sup Ct, NY County 2015]). Consequently, the plaintiff in the present action does not have a cause of action under Civil Rights Law § 51, since Bianchi's book is exempt as a work of art.
The plaintiff contended that Bianchi admitted that, when he took the photographs, he did not intend for them to be "art," that Bianchi retroactively labeled the photographs as art, and that, thus, the privacy statue should apply. However, the plaintiff does not cite to any statute or case law that requires a person to create his or her work with the intention that it would be art. Nor have the courts implemented such requirement. Additionally, the plaintiff does not provide a definition or characterization of what constitutes a work of art within the scope of the privacy statute. In any event, various forms of non-verbal expression, including works of art such as sculpture and photographs, can be protected by the First Amendment (see Simeonov v Tiegs, 159 Misc.2d 54, 58 [Civ Ct, NY County 1993]). Moreover, "paintings, photographs, prints and sculptures.. always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection" (Bery v City of NY, 97 F.3d 689, 696 [2d Cir 1996]; see Mastrovincenzo v City of NY, 435 F.3d 78, 93 [2d Cir 2006]). "[I]nformational value of the ideas conveyed by the art work is seen as a matter of public interest" and must therefore "be given the same leeway extended to the press under the newsworthy and public concern exemption" (Foster v Svenson, 128 A.D.3d at 159).
Crucially, because the photographs taken by Bianchi constitute works of art protected by the First Amendment, any advertising undertaken in connection with promoting that artwork is permitted, and does not give rise to liability under Civil Rights Law § 51 (id. at 160; see Miczura v Knowles, 2015 NY Slip Op 32351[U], *3-4 [Sup Ct, NY County 2015]). In fact, any profit that might arise from the sale of the work of art does not diminish the constitutional protection afforded by the newsworthiness, works of art, and public concern exemptions (see Foster v Svenson, 128 A.D.3d at 160; see also Stephano v News Group Publs., 64 N.Y.2d 174, 184-185 [1984]). Hence, Bianchi's book of photographs is entitled to First Amendment protection and is exempt from the imposition of liability under the privacy statute.
Like New York's right of publicity laws, the California Civil Code states that
"Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof"(Cal. Civ. Code § 3344). California's right of publicity law also provides for an exemption for matters related to news, public affairs, sports broadcast, or political campaigns (Cal. Civ. Code, § 3344(d)). Moreover, California courts have held that "expressive works, whether factual or fictional," are subject to First Amendment protections and, thus, a cause of action seeking to vindicate purported privacy rights may not be maintained (Daly v Viacom, Inc., 238 F.Supp.2d 1118, 1123 [ND Cal 2002]; see Guglielmi v Spelling-Goldberg Prods., 25 Cal 3d 860, 871-872 [1979]). Finally, where advertisement of expressive works is merely an adjunct to the work and promotes the work, the action does not lie (Cher v Forum Intl., LTD, 692 F.2d 634, 639 [9th Cir 1982]). Hence, even though Bianchi, as a California resident, would be subject to applicable California statutes, Bianchi's book of photographs is exempt from any liability imposed by California's right of publicity law.
Under New Jersey law,
"[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy"(Restatement 2d of Torts, § 652C). "It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded" (Restatement 2d of Torts, § 652C; see Bisbee v John C. Conover Agency, Inc., 186 N.J. Super 335, 342, 452 A.2d 689, 693 [App Div 1982]). News, information, or education, and entertainment provided by books, articles, pictures, films, and broadcasts are given the benefit of the doubt and, thus, are not actionable (see id.). Like New York and California, New Jersey also provides a First Amendment defense to an action seeking to protect the right of publicity (see Hart v Electric Arts, Inc., 808 F.Supp.2d 757, 774-775 [DNJ 2011]). Thus, the plaintiff's sixth cause of action, premised upon a usurpation of an individual's right to publicity under New York, California, and New Jersey statutory law must be dismissed for failure to state a cause of action.
7. Seventh Cause of Action - Negligence
Bianchi acknowledges that the seventh cause of action was directed towards the defendants Vogt Gallery, LLC, and Damiani Editore only, yet he seeks dismissal of the cause of action on their behalf. However, since that cause of action did not seek relief against Bianchi here, he does not have standing to seek dismissal of this cause of action on behalf of his codefendants (see generally Mixon v TBV, Inc., 76 A.D.3d 144 [2d Dept 2010]). Hence, the seventh cause of action cannot be dismissed at this juncture.
8. Eighth Cause of Action - Violation of Civil Rights Law § 52-b
Civil Rights Law § 52-b(1) provides that,
"Any person depicted in a still or video image, regardless of whether or not the original still or video image was consensually obtained, shall have a cause of action against an individual who, for the purpose of harassing, annoying or alarming such person, disseminated or published, or threatened to disseminate or publish, such still or video image, where such image:
"was taken when such person had a reasonable expectation that the image would remain private; and
"depicts (i) an unclothed or exposed intimate part of such person; or (ii) such person engaging in sexual conduct, as defined in subdivision ten of section 130.00 of the penal law, with another person; and
"was disseminated or published, or threatened to be disseminated or published, without the consent of such person. "
The statute does not apply to,
"the reporting of unlawful conduct;
"dissemination or publication of an intimate still or video image made during lawful and common practices of law enforcement, legal proceedings or medical treatment;
"images involving voluntary exposure in a public or commercial setting; or
"dissemination or publication of an intimate still or video image made for a legitimate public purpose."(Civil Rights Law § 52-b[3]). The plaintiff has sufficiently pleaded a cause of action under the statute. Bianchi's contention that his photographs are not actionable under a "work of art" exception similar to Civil Rights Law § 51 is unavailing, as Civil Rights Law § 52-b expressly enumerates its exemptions, and none addresses works of art. Thus, the eighth cause of action may not be dismissed for failure to state a cause of action.
III. CONCLUSION
Accordingly, it is
ORDERED that the motion of the defendant Tom Bianchi is granted to the extent that fourth and sixth cause of action are dismissed insofar as asserted against him, without prejudice, and the motion is otherwise denied; and it is further, ORDERED that the defendant Tom Bianchi shall serve an answer to the remaining causes of action in the complaint in accordance with CPLR 3211(f).
This constitutes the decision and order of the court.