Orbach v Hilton Hotels Corp.

[*1] Orbach v Hilton Hotels Corp. 2005 NY Slip Op 52113(U) [10 Misc 3d 1064(A)] Decided on July 26, 2005 Supreme Court, New York County Fried, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2005
Supreme Court, New York County

Jerry Orbach, Plaintiff,

against

Hilton Hotels Corp., Defendant.



102061-2004

Bernard J. Fried, J.

At issue is whether plaintiff, Jerome B. Orbach, a/k/a Jerry Orbach ("Orbach") filed an amended complaint prior to his death, and whether his claim pursuant to Civil Rights Law §§ 50 and 51 against defendant, Hilton Hotels Corp. ("Hilton Hotels") was extinguished upon his death. I answer the first question in the affirmative and the second question in the negative. As a result of this decision, Orbach's Executrix may substitute as the plaintiff in this action, and Hilton Hotels must answer the Amended Complaint.

This action arises from a video documentary, commissioned by Hilton Hotels and narrated by Orbach. (Verified Amended Complaint, ¶¶ 2; 12). Plaintiff asserts "that [Hilton Hotels] has illegally used and displayed the video far beyond the terms of the original agreement thereby causing harm to him." (Id.). When Orbach agreed to narrate the video, he believed that it would be shown only once, for the 100th Anniversary Celebration of the Waldorf-Astoria, which is owned by Hilton Hotels. (Id., ¶¶9; 11-12). Orbach further asserted that Hilton Hotels continued to use the video, at least until late 2003. (Id., ¶20). While alive, Orbach sued Hilton Hotels for a claimed violation of §§50 and 51; unjust enrichment; misappropriation of the property right in his name and voice under New Jersey Law; and misuse of his image and voice under California Law, Civil Code § 3344. (Verified Complaint, ¶¶1; 42; 49). Defendant appeared and served an answer to that complaint on or about March 19, 2004. (Affirmation in support of the application by Elaine Orbach, Executrix of Mr. Orbach's estate, to substitute for Mr. Orbach as plaintiff, ¶3).

On October 26, 2004, at oral argument, I granted plaintiff's Cross-Motion for leave to file an Amended Complaint, pursuant to CPLR §3025(b). The Amended Complaint added a claimed violation of the Lanham Trademark Act, 15 USC §1125(a) and also sought relief "for invasion of privacy, misappropriation of likeness and identity, and violation of [Orbach's] right of publicity, in the States of Michigan and Pennsylvania." (Verified Amended Complaint ¶1). The only claim alleged in the original complaint that the Amended Complaint reasserts is the claimed violation of §§ 50 and 51.

Orbach died on December 28, 2004. Thereafter, on March 28, 2005, Hilton Hotels was [*2]sent a proposed stipulation and order substituting Elaine Orbach, wife of the deceased and Executrix of his estate, as the plaintiff in this action. This was rejected.

On May 10, 2005, I issued an Order to Show Cause "why an order should not be issued herein pursuant to CPLR §1015(a) and 1021" to substitute Orbach's Executrix as plaintiff. Opposing the motion for substitution, Hilton Hotels argues that plaintiff's "only remaining" claim is pursuant to §§ 50 and 51, because the Amended Complaint was never filed and no other claims were alleged in both the original and amended complaints. (Affirmation of John A. Piskora in Opposition to the Application of the Orbach Estate for Substitution as Plaintiff ¶¶ 8-10). Hilton Hotels further argues that Orbach's Executrix cannot substitute for him as plaintiff because the §51 claim was "extinguished by [plaintiff's] death." (Id. ¶11).

Turning to the first issue: was the Amended Complaint filed before Orbach's death. Here, the motion to amend the complaint, which contained as an attachment the proposed amended pleading, was served and filed upon the defendant. Thereafter, the motion was granted, on the record, and I filed a "grey sheet" Order, stating that "The Cross-Motion for leave to file an Amended Complaint is GRANTED". (Order of 10/26/04). In this order, I inadvertently failed to state that the Amended Complaint was deemed filed at that time, as it was. (Cf. Leibowitz v Mt. Sinai Hospital, 296 AD2d 340 [1st Dept., 2002] and Kocak v Egert, 280 AD2d 335 [1st Dept., 2001]). Clearly, the Amended Complaint should be deemed served and filed on the date the motion was decided. Thus, I deem the Amended Complaint so served and filed on October 26, 2004 and direct that it be answered within 20 days of the Notice of Entry of this decision.

Next, defendant argues that Orbach's §51 claim was extinguished upon his death and, that as a result, his Executrix cannot substitute for him as plaintiff. (Affirmation of John A. Piskora in Opposition to the Application of the Orbach Estate for Substitution as Plaintiff ¶¶11-12). The cases cited in support of this argument concern situations where §51 actions were first commenced after the death of the person whose civil rights were allegedly violated. For example, the Second Department held that plaintiffs could not file suit, pursuant to §§ 50 and 51, on behalf of their deceased child "because a cause of action under those statutes...belonged to the infant alone and was extinguished upon the infant's death." (Smith v Long Island Jewish-Hillside Medical Center, 118 AD2d 553, 554 [2nd Dept., 1986]). See also: Pirone v MacMillan, Inc., 894 F.2d 579, 585 (2nd Cir., 1990) (applying § 50 [and §51] the Court held that "[t]he right of privacy protection [§§ 50-51]... is clearly limited to any living person' " [quoting §50]); James v Delilah Films, Inc., 144 Misc 2d 374, 378-79 (Sup Ct., NY County, 1989); Antonetty v Cuomo, 131 Misc 2d 1041, 1046 (Sup. Ct., Bronx County, 1986); and Schumann v Loew's Inc., 144 NYS2d 27, 29 (Sup. Ct., NY County, 1955).

Here, Orbach, while still alive, brought the §51 action to vindicate his own right to privacy. He then died. The issue is, whether having filed the action before death, the action may be continued on behalf of the now deceased plaintiff. Judge Morris Lasker answered this question in Groucho Marx Productions Inc. and Julius Henry Marx, a/k/a Groucho Marx v Playboy Enterprises Inc., and Playboy Publications, Inc. 1979 U.S. Dist. LEXIS 13900, page 2 (S.D.NY, 1979), and held that if an individual files a §51 action and then dies, his legal representative may be substituted. Judge Lasker distinguished cases in which the action was brought after the death of the plaintiff as follows: Those cases held merely that it was no violation of §§ 50 and 51 to use the picture of a [*3]person already dead at the time of the initial use of the picture, a proposition with which we agree. However, in this case, the use (and the complaint as to the use) of the pictorial material in question preceded the death of Groucho Marx [plaintiff], and nothing in the statute or the cases cited precludes his legal representatives from continuing to press the claim he asserted before he died.



It is evident that, as Judge Lasker persuasively concluded, Orbach's Executrix is entitled to continue this action.

Finally, the motion has been timely filed. "If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties." (CPLR §1015[a]). "A motion for substitution may be made by the successors or representatives of a party or by any party." (CPLR §1021). The motion must be made "within a reasonable time." (Id.). Here, approximately three months following the death of Orbach, Hilton Hotels was sent a proposed stipulation and order substituting Elaine Orbach, wife of the deceased and Executrix of his estate, as the plaintiff in this action. (Stipulation of Substitution and Order, 3/24/05). Hilton Hotels returned the Stipulation of Substitution to plaintiff unsigned and plaintiff then moved for substitution pursuant to CPLR §§ 1015(a) and 1021 on April 25, 2005. (Affirmation in support of the application by Orbach's Executrix to substitute for him as plaintiff, ¶10). To me, the attempt within three months to obtain a stipulated substitution followed by this motion is certainly within a reasonable time.

Accordingly, it is ORDERED that the Amended Complaint is deemed filed and served on October 26, 2004; and it is further

ORDERED that the motion for substitution is GRANTED, and it is further ORDERED that the defendant is to file and serve its Answer to this Amended Complaint within 20 days after service of this decision with notice of entry.

Dated: July 26, 2005ENTER:

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J.S.C.