Suss v New York Media, Inc.

Suss v New York Media, Inc. 2010 NY Slip Op 00011 [69 AD3d 411] January 5, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

Ulrich Suss, Appellant,
v
New York Media, Inc., et al., Respondents.

—[*1] Patrick J. McAuliffe, Astoria, for appellant. Miller Korzenik Sommers LLP, New York (David S. Korzenik of counsel), for respondents.

Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered December 22, 2008, dismissing the complaint pursuant to an order, same court and Justice, entered December 16, 2008, which, in an action for defamation and violation of Civil Rights Law §§ 50 and 51 arising out of the publication of a photograph of plaintiff in a magazine, granted defendants' motion to dismiss the complaint as barred by the one-year statute of limitations, unanimously affirmed, without costs. Appeal from the above order unanimously dismissed, without costs, as subsumed in the appeal from the above judgment.

The offending photograph appeared in the May 7, 2007 issue of the magazine; defendants assert that such issue was distributed to newsstands in Manhattan on April 28 and April 29 2007; the action was commenced on April 30, 2008; and it is undisputed that both of plaintiff's claims are governed by the one-year statute of limitations. To prove their claim of distribution on April 28 and April 29, defendants submitted the affidavit of the magazine's officer with personal knowledge of the magazine's printing and publication practices; the affidavits of an individual who was personally involved in distributing the issue and placing covers of the issue in promotional Windows Banners at newsstands; and photographs of the Windows Banners, digitally dated April 29, taken by the distributor in the ordinary course of business, depicting covers of the issue on display at newsstands along with weekend editions of newspapers dated April 27 and other newspapers dated April 29.

We reject plaintiff's argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue's distribution date; the distributor's affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants' reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication.

We also reject plaintiff's argument that unless the court gives CPLR 3211 (c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211 (a) (5) (see Alverio v New York Eye & [*2]Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]). Concur—Tom, J.P., Andrias, McGuire and Manzanet-Daniels, JJ.