Opinion
2018–07530 Index No. 502686/17
07-29-2020
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Adam R. Bialek and Nathan T. Horst of counsel), for appellant. Wanda Darden, Brooklyn, NY, respondent pro se.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Adam R. Bialek and Nathan T. Horst of counsel), for appellant.
Wanda Darden, Brooklyn, NY, respondent pro se.
MARK C. DILLON, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, PAUL WOOTEN, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for violations of Civil Rights Law §§ 50 and 51, the defendant appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated February 23, 2018. The order denied the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements. In 2017, the plaintiff commenced this action, inter alia, to recover damages allegedly arising from the defendant's unauthorized use of the plaintiff's likeness and that of her professional personality "Phantom Knoet" in an advertising campaign. The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In an order dated February 23, 2018, the Supreme Court denied the motion, and the defendant appeals.
"In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court is required to accept the facts as alleged in the complaint as true, accord the plaintiff[ ] the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Zuniga v. BAC Home Loans Servicing, L.P., 147 A.D.3d 882, 883, 47 N.Y.S.3d 374 ; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 ; see Vermont Mut. Ins. Co. v. McCabe & Mack, LLP, 105 A.D.3d 837, 964 N.Y.S.2d 160 ). "Furthermore, ‘[u]nlike ... a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties' evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings’ " ( Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30, 38, 73 N.Y.S.3d 95, 96 N.E.3d 191, quoting Davis v. Boeheim, 24 N.Y.3d 262, 268, 998 N.Y.S.2d 131, 22 N.E.3d 999 ).
We agree with the Supreme Court's determination denying those branches of the defendant's motion which were to dismiss the first and second causes of action, alleging violations of the plaintiff's right of privacy and the related right of publicity, respectively, under Civil Rights Law §§ 50 and 51. Civil Rights Law § 50 prohibits "[a] person, firm or corporation" from using "for advertising purposes ... the name, portrait or picture of any living person without having first obtained the written consent of such person." "A name, portrait or picture is used ‘for advertising purposes’ if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service" Beverley v. Choices Women's Med. Ctr., 78 N.Y.2d 745, 751, 579 N.Y.S.2d 637, 587 N.E.2d 275 ). Here, accepting the plaintiff's allegations as true, which we must (see Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), whether or not the subject image constituted a work of art, the first and second causes of action state cognizable causes of action under Civil Rights Law §§ 50 and 51 as they allege, inter alia, that the defendant used the plaintiff's portrait, image, and likeness as Phantom Knoet in an advertising campaign, which included promotional merchandise to promote the defendant's financial services and products (cf. Foster v. Svenson, 128 A.D.3d 150, 160, 7 N.Y.S.3d 96 ; see generally CPLR 3014 ).
However, the Supreme Court should have granted that branch of the defendant's motion which was to dismiss the third cause of action, alleging a violation of a purported common-law right of publicity based on the defendant's misappropriation of the plaintiff's property right in her image and that of her persona Phantom Knoet. As the right of publicity is encompassed under the Civil Rights Law as an aspect of the right of privacy, which is exclusively statutory, there is no common-law right of publicity (see Stephano v. News Group Publs., 64 N.Y.2d 174, 183, 485 N.Y.S.2d 220, 474 N.E.2d 580 ; see also Cohen v. Herbal Concepts, 63 N.Y.2d 379, 384, 482 N.Y.S.2d 457, 472 N.E.2d 307 ; Hampton v. Guare, 195 A.D.2d 366, 600 N.Y.S.2d 57 ; Brinkley v. Casablancas, 80 A.D.2d 428, 438 N.Y.S.2d 1004 ; Onassis v. Christian Dior–N.Y., 122 Misc.2d 603, 472 N.Y.S.2d 254 [Sup. Ct., N.Y. County], affd 110 A.D.2d 1095, 488 N.Y.S.2d 943 ; DeClemente v. Columbia Pictures Indus., Inc., 860 F Supp 30, 52 [E.D. N.Y.] ).
The plaintiff's remaining contention is improperly raised for the first time on appeal.
DILLON, J.P., BALKIN, COHEN and WOOTEN, JJ., concur.