Opinion
# 2016-032-162 Claim No. 127457 Motion No. M-89199 Cross-Motion No. CM-89330
12-20-2016
KAVON FORD v. THE STATE OF NEW YORK
Kavon Ford, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Anthony Rotondi, Assistant Attorney General, Of Counsel
Synopsis
Claim sounding in violations of claimant's right to privacy, copyright infringement, and breach of certain provisions of the Uniform Commercial Code is dismissed.
Case information
| UID: | 2016-032-162 |
| Claimant(s): | KAVON FORD |
| Claimant short name: | FORD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127457 |
| Motion number(s): | M-89199 |
| Cross-motion number(s): | CM-89330 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Kavon Ford, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Anthony Rotondi, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | December 20, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, filed the instant claim seeking money damages from the State for violations of his right to privacy, copyright infringement, and breach of certain provisions of the Uniform Commercial Code (UCC), which he alleges occurred while he was in the custody of the Department of Corrections and Community Supervision (DOCCS). Following joinder of issue, defendant moved to dismiss the claim on the grounds that claimant has failed to state a cause of action and the Court of Claims lacks subject matter jurisdiction over the claim. Claimant opposes the motion and cross-moves for summary judgment in his favor, which motion defendant opposes.
Turning first to defendant's motion to dismiss, "[o]n a motion to dismiss for failure to state a cause of action, the . . . court must construe the [claim] liberally, accept the facts alleged in the [claim] as true, afford the [claimant] the benefit of all favorable inferences and determine whether the facts alleged support any legally cognizable theory" (Evans v Deposit Cent. Sch. Dist., 139 AD3d 1172, 1174 [3d Dept 2016]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Sawyer v Prusky, 71 AD3d 1325, 1325-1326 [3d Dept 2010]).
The instant claim, which is entitled "Commercial Tort Claim Execution of Security Agreement," alleges the following facts. On December 27, 2015 and January 4, 2016, respectively, two correction officers "used claimant's private copyrighted property 'Kavon Denzel Ford' (title) in derivative form 'Kavon Ford' without prior written consent constituting unauthorized use, secured by Security Agreement and Civil Rights Law Section Fifty (50)" (Claim ¶ 3). As best the Court can discern, claimant appears to be arguing that DOCCS' use of his name in two inmate misbehavior reports without his authorization violated his right to privacy under the Civil Rights Law (see Civil Rights Law §§ 50, 51). Claimant further alleges that such use constituted copyright infringement (Claim ¶ 7), and that the misbehavior reports in question were commercial items and/or negotiable instruments under the UCC, which he signed under undue influence and duress due to the threatening behavior of the correction officers (Claim ¶¶ 4-6).
With respect to claimant's assertion that the above actions on the part of DOCCS constituted a violation of his right to privacy, it is well settled that "'New York does not recognize a common-law right of privacy'" (Juric v Bergstraesser, 44 AD3d 1186, 1187 [3d Dept 2007], quoting Messenger v Gruner + Jahr Print. & Publ., 94 NY2d 436, 441 [2000], cert denied 531 US 818 [2000]; see Foster v Svenson, 128 AD3d 150, 155 [1st Dept 2014]). "The statutorily-created right prohibits the use of a person's 'name, portrait or picture' (Civil Rights Law § 50) or 'name, portrait, picture or voice' (Civil Rights Law § 51) for advertising or trade purposes" (Foster v Svenson, 128 AD3d at 155). Civil Rights Law § 50 "provides for criminal penalties for such prohibited uses, while [Civil Rights Law §] 51 gives the individual victim of such appropriation the right to obtain an injunction and bring a cause of action to obtain compensatory and exemplary damages" (id.). "These statutory provisions prohibit the use of pictures, names or portraits 'for advertising purposes or for the purposes of trade' only, and nothing more" (Finger v Omni Publs. Intl., 77 NY2d 138, 141 [1990] [emphasis in original], quoting Arrington v New York Times Co., 55 NY2d 433, 439 [1982]).
Here, even affording the claim a liberal construction and accepting the facts alleged therein to be true, claimant's cause of action for a violation of the Civil Rights Law does not withstand the motion to dismiss (see Foster v Svenson, 128 AD3d at 160). Despite claimant's attempts to characterize the misbehavior reports as "commercial" in nature (Affidavit in Support of Cross Motion ¶ 7), such reports simply do not meet the narrowly-construed standard of being "strictly for the purpose of advertising or trade within the meaning of the privacy statute" (id., at 156; see Finger v Omni Publs. Intl., 77 NY2d at 141; Arrington v New York Times Co., 55 NY2d at 440). Accordingly, claimant's cause of action alleging a violation of his right to privacy must be dismissed (see Frank v State of New York, UID. No. 2015-015-063 [Ct Cl, Collins, J., Jul. 28, 2015).
Turning next to claimant's cause of action alleging violations of the UCC, contrary to his assertions in the claim, a misbehavior report does not constitute a negotiable instrument, as it does not "contain an unconditional promise or order to pay a sum certain in money and no other promise" (UCC 3-104 [1] [b]), and it is not "payable to order or to bearer" (UCC 3-104 [1] [d]; see Ford Credit Motor Co., LLC v Johnson, 29 Misc 3d 1205 [A], 2010 NY Slip Op 51703 [U], *1 [Civ Ct, Kings County 2010]). In addition, the underlying purpose of the UCC is "to simplify, clarify and modernize the law governing commercial transactions" (UCC 1-102 [2] [a]). Inasmuch as there are no commercial transactions involved in the issuance of a misbehavior report by DOCCS, the Court finds that claimant has failed to state a cause of action under the UCC (see Toliver v State of New York, UID No. 2015-053-527 [Ct Cl, Sampson, J., Dec. 22, 2015).
Turning lastly to claimant's allegations of copyright infringement, the Court agrees with defendant that it lacks subject matter jurisdiction as to said claim. As a general rule, copyright law is governed exclusively by 17 USC § 101 et seq., also referred to as the Copyright Act. Pursuant to 28 USC § 1338 (a), federal "district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks," and "[n]o State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights." Thus, where, as here, an action seeks redress for the alleged violation of rights equivalent to those provided for by the Copyright Act, including common law copyright claims, New York courts have held that State courts are divested of jurisdiction over said claims (see e.g. Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 522 [1984]; Lifeline v State of New York, UID No. 2007-039-015 [Ct Cl, Ferreira, J., Aug. 10, 2007]; Walker v Time Life Films, 1983 WL 37482, *2 [Sup Ct, Bronx County 1983]; compare Grecco v Sygma, 284 AD2d 234, 235 [1st Dept 2001]; Jordan v Aarismaa, 245 AD2d 616, 617 [1997]). Accordingly, defendant's motion to dismiss claimant's cause of action sounding in copyright infringement must be granted.
Additionally, to the extent that the instant claim may be read to allege violations of claimant's rights under the Federal Constitution, this Court lacks subject matter jurisdiction over such claims, as they must be brought pursuant to 42 USC § 1983 and may not be maintained in the Court of Claims, given that the State is not a "person" for purposes of the statute (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ohnmacht v State of New York, 14 Misc3d 1231 [A], at *2 [Ct Cl 2007]). Further, to the extent that claimant seeks to allege a State constitutional tort, the Court finds that "[r]ecognition of a constitutional tort claim here is neither necessary to effectuate the purposes of the State constitutional protections [claimant] invokes, nor appropriate to ensure full realization of [his] rights" (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; compare Brown v State of New York, 89 NY2d at 192). An essential element of such a claim is that the only remedy available to enforce the constitutional right at issue is monetary damages (see Martinez v City of Schenectady, 97 NY2d at 83-84; Brown v State of New York, 89 NY2d at 189, 192; Waxter v State of New York, 33 AD3d 1180, 1181-1182 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003] ). Here, however, claimant could have sought expungement of the misbehavior reports at issue by way of an administrative appeal and/or a CPLR article 78 proceeding (see e.g. Matter of Allah v Goord, 26 AD3d 608 [3d Dept 2006], lv denied 6 NY3d 714 [2006]; Matter of Abdul-Matiyn v New York State Dept. of Correctional Servs., 251 AD2d 769 [3d Dept 1998], appeal dismissed 92 NY2d 1025 [1998]; Matter of Bunny v Coughlin, 187 AD2d 119 [3d Dept 1993], appeal dismissed 82 NY2d 679 [1993]).
In light of the foregoing, the Court grants defendant's motion to dismiss in its entirety and dismisses the claim. Claimant's cross motion for summary judgment is therefore denied, and any arguments raised therein, to the extent not addressed in this Decision and Order, are dismissed as academic. Accordingly, it is hereby
ORDERED, that defendant's motion to dismiss (M-89199) is granted; and it is further
ORDERED, that claimant's cross motion (CM-89330) is denied; and it is further
ORDERED, that the claim (No. 127457) is dismissed.
December 20, 2016
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Claim, dated January 19, 2016, with attachments. 2. Notice of Motion, dated September 7, 2016; Affirmation in Support of Motion to Dismiss, affirmed by Anthony Rotundi, AAG, on September 7, 2016, with exhibits. 3. Notice of Cross Motion, dated September 15, 2016; Affidavit in Support of Cross Motion, signed by claimant on September 15, 2016. 4. Affirmation in Opposition to Summary Judgment Motion and in Further Support of Motion to Dismiss, affirmed by Anthony Rotundi, AAG, on September 26, 2016.