Walter v NBC Tel. Network, Inc.

[*1] Walter v NBC Tel. Network, Inc. 2005 NY Slip Op 50754(U) Decided on April 26, 2005 Supreme Court, Monroe County Polito, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 26, 2005
Supreme Court, Monroe County

Claire Walter, Plaintiff,

against

NBC Television Network, Inc., subsidiary of NBC Universal, The Tonight Show, Jay Leno, Dorschel Automotive Group, Inc., Defendants.



04/12768



NIRA T. KERMISH, ESQ., of Counsel

Attorney for Plaintiff

Office and P.O. Address

405 Executive Office Bldg.

Rochester, NY 14614

NIXON PEABODY, LLP

CHRISTOPHER D. THOMAS, ESQ., of Counsel

Attorneys for Defendant NBC Universal Inc.

and Jay Leno

Office and P.O. Address

Clinton Square

P.O. Box 31051

Rochester, NY 14603-1051

CHELUS, HERDZIK, SPEYER, MONTE & PAJAK, P.C.

MICHAEL F. CHELUS, ESQ., of Counsel

Attorneys for Defendant Dorschel Automotive Group, Inc.

Office and P.O. Address

1000 Main Court Building

438 Main Street

Buffalo, NY 14202-3208

William P. Polito, J.

RELIEF REQUESTED:

Defendant NBC Television Network, Inc, a Subsidiary of NBC Universal, The Tonight Show, and Jay Leno, (NBC) move collectively for an order pursuant to CPLR 3211(a)(7) dismissing plaintiff's action on the basis that Civil Rights Law Section 50 and 51 are inapplicable, but even if applicable, the picture and comment were newsworthy. Further, defendant asserts plaintiff's complaint does not sufficiently allege a cause of action for emotional distress since the conduct alleged, even if true, is not sufficiently outrageous as a matter of law.

Defendant Dorschel moves for summary judgment under CPLR 3212 on the basis that plaintiff cannot prove the four elements to sustain her cause of action for emotional distress: 1. Extreme and outrageous conduct, 2. Intent to cause or disregard a substantial probability of causing severe emotional distress, 3. A causal connection between the conduct and injury, 4. Severe emotional distress. Defendant also asserts that the complaint does not allege a cause of action against it for violation of Civil Rights Law Sec. 50 and 51.

Plaintiff opposes on the basis that the motions were filed prior to any discovery and/or depositions, and that plaintiff cannot adequately respond without such discovery. Plaintiff has also provided sworn affidavits disputing defendants NBC's evidentiary submissions of the T.V. clip as complete, as well as additional photos from NBC's website, which were not provided by NBC.

DECISION:

Defendant Dorschel's motion is denied without prejudice to renew after discovery.

Defendant's NBC's motion to dismiss the "intentional infliction" cause of [*2]action is granted. Defendant NBC's motion to dismiss Sec. 50 and 51 is denied without prejudice to renew after discovery.

RATIONALE:

Defendant Dorschel

Civil Rights Law Sec. 51

Plaintiff alleges that her former employer, after she left its employment, placed her photograph on its business card addressed to its customers and sent it to Defendant NBC who showed it on TV for purposes of its (Dorschel's) advertising or trade.

Those allegations satisfy the basic elements of Civil Rights Law Section 51. The customer "thank you" business card on the face of it was for purposes of defendant's trade. The defendant employer has not submitted proof that plaintiff consented to such use.

Intentional Infliction

The plaintiff further alleges that the transmission by the employee of an unflattering photograph of her in a stern, angry pose, which when juxtaposed with the contrasting characterization of plaintiff as "friendly" and transmitted for TV showing was intended to and did needlessly expose plaintiff to ridicule, and did cause her extreme emotional distress.

It is not clear whether plaintiff is alleging the photo and card were actually used by the employer with her consent while plaintiff was employed there, or whether it was created thereafter to embarrass her..

Accordingly, the Court is unable and unwilling to make such summary judgment determination of dismissal of the intentional infliction cause of action without providing the plaintiff an opportunity to discover the full factual pattern and circumstances. Especially, since timely application was made for discovery, the full extent of defendant's conduct is not known, and is within defendant's exclusive knowledge. (CPLR 3211(d) and 3212(f) cf. Stephano v. News Group Pub., 64 NY2d 174, 186, (1984)). Accordingly, the Court denies dismissal at this [*3]time and permits the requested discovery .

Defendant NBC

Civil Rights Law Section 51

The topic of the comedian's humorous repertoire in the "Headlines" section of his program was the purported use by an identified auto dealer of a "thank you" business card to its customers. The card showed a stern, angry employee juxtaposed with the words "friendly service advisor" (underlining added). Mr. Leno further dramatized this contrast by using a shrill, intimidating tone attributing to the picture the words "want your car fixed?!!!"

The defendant NBC prior to submitting an answer and before providing plaintiff an opportunity of discovery, relies heavily for its motion to limit the facts to those shown on its submitted TV clip. Plaintiff, in opposition, contends the critical comments by Jay Leno were more extensive and submits sworn affidavits from an observer of the program and the plaintiff, as well as additional undisputed photos shown by said defendant on its website. Defendant also relies heavily on the apparent "newsworthy" or "public interest" exception as a matter of law. However, the application of that exclusion from Sec. 51 is not fulfilled if: (1) The picture has no real relationship to the presentation, or (2) The presentation is an advertisement in disguise, or (3) If "knowingly or with reckless disregard it is so infected with fiction, dramatization, or embellishment that it cannot be said to fulfill the purpose of the newsworthy exception." (Thompson v. Close Up, Inc., 277 AD 848, (1st Dept., 1950); Murray v. NY Magazine, 27 NY2d 406, 409, (1971); Spahn v. Messner, 21 NY2d 124, 127, (1967); Quezada v. DeLamota, 130 Misc 2d 842, 846, (1st Dept., 1986)). The Court need not decide the merits at this time and can confine itself to the allegations of the complaint and submissions, and finds that the allegations are sufficient at this stage of the proceeding. (Barrows v. Rozansky, 111 AD2d 105, 107, (1st Dept., 1985), citing Rovello v. Orofino, 40 NY2d 633, 636,; Thompson v. Close Up Inc., 277 AD 848, (1st Dept., 1950)).

Plaintiff should have an opportunity to discover the facts, including whether Leno's portrayal of the alleged business 'fau pas' by Dorschel to its customers was in fact true, or a fabrication, what efforts defendant NBC made, if any, to determine its validity or truth, whether it made any effort to determine if the [*4]business had obtained the consent of the person of who was to become the humorous object of the employer's purported business card, and the full extent of Mr. Leno's further dramatization of the inherent humor of the card as well as any other relevant inquiry to determine whether any of the exceptions to the newsworthy privilege are applicable. Accordingly, defendant NBC shall submit its answer with affirmative defenses, and may renew its motion after discovery. (CPLR 3211(d)).

Intentional Infliction

However, as to the intentional infliction cause of action, the pleadings, submissions and possible facts taken most strongly for plaintiff against NBC even after discovery are still insufficient to constitute the intentional infliction of emotional distress. The receipt of an apparently humorous item by defendant's NBC and its TV transmission regarding plaintiff, even if false, is not sufficiently outrageous to constitute an intentional infliction of emotional distress. In Messenger v. Grunes, Jahr Printing, 94 NY2d 436, (2000), the plaintiff pled such cause of action. In that case, the young girl's photograph was juxtaposed into an article of teenage drugs and sex in such a manner as to suggest to the public that the plaintiff had sex with three boys at a party while under the influence of drugs, and became pregnant. All of those inferences were false. Nevertheless, the lower court found that those facts were not sufficiently outrageous because the privilege attached to the article itself which the court deemed newsworthy even when juxtaposed with pictures of the girl precludes the adverse inference from being actionable. The "intentional infliction" cause of action was dismissed by the lower court. The intermediate Appellate Court and the Court of Appeals did not reverse that determination. (Messenger, supra, 454, 455; see also Howell v. New York Post, supra). Essential to that consideration was the fact that the news article itself was newsworthy, and therefore even the embarrassing falsity was insufficient to overcome that First Amendment privilege. Similarly, here, the business card was sufficiently humorous so as to constitute an item of public interest or newsworthiness for a comedian. Even though the possibility of it being a fabrication or otherwise improper saves it from summary judgment under Sec. 50 and 51(c) prior to discovery, such fabrication by the transmitter is a great deal less outrageous than the Messenger situation and further coupled with a humorous public interest situation or newsworthiness precludes a cause of action for "intentional infliction" against defendant NBC. [*5]

Accordingly, the intentional infliction cause of action against defendant NBC is dismissed.

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the defendant NBC Universal, Inc. is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.

SO ORDERED.

Dated this 26th day of April, 2005 at Rochester, New York.

______________________________

HON. WILLIAM P. POLITO

JUSTICE SUPREME COURT