Bostwick v Christian Oth, Inc.

Bostwick v Christian Oth, Inc. 2012 NY Slip Op 00103 Decided on January 10, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 10, 2012
Friedman, J.P., Sweeny, Acosta, Renwick, Abdus-Salaam, JJ.
116010/09 6518A

[*1]6518-Sara Bostwick, Plaintiff-Appellant,

v

Christian Oth, Inc., et al., Defendants-Respondents.




The Ruth E. Bernstein Law Firm, New York (Ruth E. Bernstein
of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Harry
Steinberg of counsel), for respondents.

Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered on or about November 24, 2010, dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered October 4, 2010, which denied plaintiff's motion to amend the complaint, and granted defendants' motion for summary judgment dismissing the complaint, unanimously dismissed, with costs, as subsumed in the appeal from the judgment.

The parties' contract unambiguously granted defendants ownership of the copyright in all images created and, further, allowed them to make proofs and previews available to plaintiff to enable her to select photographs for her wedding album. Thus, defendants' only act that plaintiff complains of, i.e., posting the offending photographs on the website, falls squarely within the four corners of the contract (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69 [2003], lv dismissed 2 NY3d 794 [2004]). Plaintiff's e-mailed requests to defendants that they remove the photographs were not a revocation of defendants' right to post the photos. The contract, not plaintiff, was the source of defendants' rights; plaintiff could not revoke a grant of authority she never possessed. Nor was her alleged oral agreement with the photographer valid, in view of the written contract's integration clause explicitly prohibiting oral agreements.

Plaintiff's fraud claim is duplicative of her breach of contract claim (see Financial Structures Ltd. v UBS AG, 77 AD3d 417, 419 [2010]). Her claim of negligent infliction of emotional distress is unsupported by reliable proof of either emotional trauma or a threat to her physical safety (see Bernstein v East 51st St. Dev. Co., LLC, 78 AD3d 590 [2010]).

Plaintiff's proposed Civil Rights Law §§ 50 and 51 claims are time-barred, pursuant to the first publication rule (see Nussenzweig v diCorcia, 9 NY3d 184 [2007]). Plaintiff argues that defendants' continued posting after she requested that the photos be removed constitutes a re-publication or a first unauthorized publication. However, since defendants were within their right to post the photos, and plaintiff had no authority to revoke that right, neither the initial posting, nor the continued posting — even if it were deemed a re-publication — violated Civil Rights Law §§ 50 and 51. Moreover, defendants were not using plaintiff's photographs "for advertising purposes, or for the purposes of trade" (§ 50); even if they were using the photos for those purposes, they had obtained plaintiff's written consent to do so.

THIS CONSTITUTES THE DECISION AND ORDER [*2]
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 10, 2012

CLERK