Opinion
March 10, 1988
Appeal from the Supreme Court, New York County (David H. Edwards, Jr., J.).
In this statutory right of privacy action (Civil Rights Law §§ 50, 51), partial summary judgment on liability and permanent injunctive relief were properly granted since defendants were unable to offer a meritorious defense to the unauthorized marketing of plaintiff's photograph on packages, or hang tags attached to articles, of clothing manufactured, distributed or sold by them. They argued verbal consent, clearly unavailing under the statute (Brinkley v. Cassablancas, 80 A.D.2d 428, 434; Adrian v. Unterman, 281 App. Div. 81, 88, affd 306 N.Y. 771), although cognizable as a partial defense in mitigation of damages (Lomax v. New Broadcasting Co., 18 A.D.2d 229), as well as laches in that, for a period of 16 months, with knowledge of such use of her photograph, plaintiff never raised any objection. Defendants also urged both of these points in support of the further argument that even plaintiff construed the release form which she signed both at the time she first learned of defendants' use of her photograph on the packages, and at an earlier photographic session four months before, as a written consent to such use. Reargument/renewal was granted and the original award of summary judgment vacated on the basis of the Statute of Limitations and ambiguity in the written consent.
In our view, neither of these grounds constituted a basis for reargument or renewal or the vacatur of the previous grant of summary judgment. In opposing the motion for summary judgment, defendants never argued or even hinted that plaintiff's claims were barred by the one-year Statute of Limitations (see, CPLR 215), which, in the case of a mass distribution of a name or photograph in violation of Civil Rights Law §§ 50, 51, is subject to the "single publication" rule (see, Khaury v. Playboy Publs., 430 F. Supp. 1342). Nor did their answer assert the same as an affirmative defense, as is required. (See, CPLR 3018 [b].) Thus, having neither been pleaded nor asserted in a motion to dismiss (see, CPLR 3211 [a] [5]), the Statute of Limitations defense was waived. (See, CPLR 3211 [e].) In such circumstances, neither reargument nor renewal should have been granted. The court had not overlooked or misapplied any controlling principle of law or fact. Nor were any new facts not available on the original submission presented. Finally, we find totally lacking in merit the claim of ambiguity in the release provision consenting to the use of plaintiff's photograph "for print advertising only." The same release provided that "certain products, packaging usage, billboards, countercards, and similar special usage requires separate negotiations." That the type of photographic dissemination involved here was not encompassed by the written consent could not be clearer. An assessment of damages is in order, as originally directed.
Concur — Kupferman, J.P., Sullivan, Carro, Kassal and Ellerin, JJ.