Otero v Houston St. Owners Corp.

Annotate this Case

Download PDF

Otero v Houston St. Owners Corp. 2012 NY Slip Op 30440(U) February 28, 2012 Sup Ct, NY County Docket Number: 104819/2010 Judge: Lucy Billings Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART + I ,I Justice Index Number : 104819/2010 INDEX NO. OTERO, GEORGIA * M O T I O N DATE VS. MOTION HOUSTON STREET OWNERS CORP. SEQ. NO. MOTION CAL. NO. SEQUENCE NUMBER : 001 - DISM ACTION/INCONVENIENT FORUM this motion to/for PAPERS NUMBERED Notice of M b t i o d Order t o Show Cause Answering Affidavits - - Attidavits - txhibits ... I L Exhibits 3 Replying Affidavits Cross-Motion: 0 Yes No NEW YORK COUNTY CLERKS OFFICE Dated: I zo I IC 1 0 FINAL DISPOSITION Check if appropriate: 0 DO N O T POST Check one: 0 SUBMIT ORDER/JUDG. J.2.L. NON-FINAL DISPOSITION 0 REFERENCE SETTLE ORDER /JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 GEORGIA OTERO and JORGE OTERO, Index No. 1 0 4 8 1 9 / 2 0 1 0 Plaintiffs - against - DECISION AND ORDER HOUSTON STREET OWNERS CORP., CHAIM BABAD, BABAD MANAGEMENT CO., and HOUSTON STREET MANAGEMENT CO., FILED Defendants FEB 28 2012 _ --X LUCY BILLINGS, J.S.C.: I. NEW YORK COUNTY CLERK S OFFICE BACKGROUND Plaintiffs sue to recover damages for invasion of privacy from defendants installation of cameras on premises where plaintiffs were tenants. Defendants Chaim Babad and Houston Street 0wners.Corp. owned and defendants Babad Management Co. and Houston Street Management Co. managed the premises. Defendants move to dismiss the complaint on the grounds of a documentary defense, failure to state a claim, and lack of p e r s o n a l jurisdiction. C.P.L.R. 5 3211(a) (1), ( 7 ) , and ( 8 ) . The c o u r t grants defendants motion to the extent set f o r t h and f o r the reasons explained below. 11. JURISDICTIOV OVER DEFENDANTS T h e c o u r t w i l l dismiss a complaint for lack of personal jurisdiction over defendants if plaintiffs fail to adhere to statutory service requirements. Kurahan v. Townhouse Mqt. Co., 2 2 3 A.D.2d 402, 403 (1st Dep t 1996). o t a r o .138 1 See Flick v. Stewart- [* 3] Warner Corp., 76 N.Y.2d 50, 56-57 (1990); Preaalev v. Shneyer, 56 A.D.3d 263 (1st Dep't 2008); Lazarevich v. L o t w i n , 1 7 6 A.D.2d 646, 647 (1st Dep't 1991). In t w o affidavits dated April 30, 2010, plaintiffs' attorney, Leonard Flamm, attests t h a t on April 14, 2010, at 11:05 a.m., he delivered the summons and complaint to Ari at "1531 57th Street, Brooklyn, New Y o r k I t 1 and that IlDoeIl he waa a peraon of suitable age and diecretion. Aff. of Jordan S k l a r Ex. B. Flamm attests that he knew the person served "to be an employee (Office Manager) of the Defendant and he identified himself as the person authorized to accept service fortr defendants. I. d The first affidavit was to show service on Babad. The second affidavit was t o show service on all three corporate defendants. C.P.L.R. 5 3 0 8 ( 2 ) permitted plaintiffs to Berve Babad "by delivering the summons within the state to a pereon of suitable age and discretion at the actual place of business . . . and by either mailing the summons to the person t o be served at his or h e r last known residence or by mailing t h e summons by first c l a s s mail to the person to be served at his or her actual place of business." See Presaley v. Shnever, 56 A.D.3d 263; Schorr v. Persaud, 51 A.D.3d 519, 520 (1st Dep't 2008). While Flamm establishes that he served Babad at his place of business pursuant to C.P.L.R. 5 263; Schorr 308(2), PreQsley v. Shneyer, 56 A.D.3d v. Persaud, 51 A.D.3d at 520, the affidavit nowhere indicates compliance with t h e mailing requirement. Solis Ens'q S e r v a . v. D ~ r i a l d , 2 5 8 A.D.2d 4 2 5 , 4 2 6 (1st Dep't o t e r o .138 2 1999); Caruso v. [* 4] R a j u , 249 A.D.2d 2 5 6 , 257 (2d Dep't 1998). No hearing is necessary to determine this deficiency. Flamrn's first affidavit would r e q u i r e dismissal of the complaint against: Babad. Pena v. pros, 62 A.D.3d 466 (1st Dep't 2009). Delivery of a summons and complaint "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service" constitutes personal service on the corporate defendants. Co I . C.P.L.R. 5 0 N.Y.2d 2 6 5 , 5 311(a)(1); Fashion Paqe v . Zurich Ins. 271 (1980); partin v. Archway ann, 164 A.D.3d 843, 844 (1st Dep't 1990). Although an office manager is not a title listed in C.P.L.R. 5 311(a)(1), delivery to a lower ranked employee acting as the corporation's managing or general agent may qualify as valid service. Fashign Pase v. Zurich Ins. Co., 50 N.Y.2d at 271; Martin v. Archway Inn, 164 A.D.2d at 8 4 5 . Daniels v. Kinq Chicken & 2006); Lewia v. R.H. Macy & Stuff, Inc., 35 A.D.3d 345 (2d Dep't & Co., 213 A.D.2d 605 (2d Dep't 1995). T h m service on a person not listed in C . P . L . R . 5 311(a) (1) may constitute proper service on a corporation if t h a t person claims to be authorized to accept service, and the process server reasonably relies on that claim. Fgshian Paqe v. Zurich Lns. CO., 50 N.Y.2d at 272-73; Amanitis v . Bankers Trust Co., 286 A.D.2d 273 (1st Dep't 2001); Martinez v, Church of St. Greqory, 261 A.D.2d 179, 180 (1st Dep't 1999); Martin v. Archway Inn, 164 A.D.2d at 845. See Matter of Bart-Rich Enters., I n c . v . BoyceCanandaisua, Inc., 8 A.D.3d at 1120. otero .13 8 3 Since Flamm attests that [* 5] . I the person he served identified himself as authorized to accept service on the corporate defendants' behalf, plaintiffs have set forth a prima facie showing of adequate service on the corporate defendants. C . P . L . R . 5 311(a)(1); BevilaCgua v. Blooherq, L.P., 70 A.D.3d 411, 412 (1st Dep't 2010). See NYCTL 1998-1 Trust & Bank of N.Y., 7 A.D.3d 459, 460 (1st Dep't 2004). In rebuttal, Babad, an officer of defendant Houston Street Owners Corp. and a principal of defendants Babad Management Co. and Houston Street Management Co., attests that no person named IIAriII ever worked at 1531 57th Street, Brooklyn, New York. Babad attests that Sheldon Becker worked there, but was neither the office manager, nor authorized to accept ,service on behalf of Babad Management Co., Street Management Houston Street Owners C o r p . , o r Houston Co. Sheldon Becker further attests that on April 14, 2010, when he was an employee of Babad Management, a person asked if Becker could accept papers for Babad and the corporate defendants. When Becker responded t h a t he could on a d e s k . not do so, the person left papers Becker denies claiming that he was authorized to accept service on any party's behalf or that he was an office manager. Defendants' affidavits specifically contradict Flamm's affidavits and therefore require an evidentiary hearing regarding at least the corporate defendants. Bevilacqua v. Bloomberq, L'P I . 70 A.D.3d at 4 1 2 ; Finkelatein Newm3n Ferrara LLp v. Wanninq, 67 A.D.3d 538 (1st Dep't 2009); Poree v , Bynum, 56 A.D.3d 261 (1st Dep't 2008); NYCTL 1998-1 Trust o t e r o . 138 4 & Bank of N,Y. v. [* 6] Rabinowitz, 7 A.D.3d at 460. Plaintiffs seek to resolve this factual dispute and a l s o to show adequate service on Babad by opposing defendants' motion with two subsequent affidavits by Flamm. They set forth that "on July 15, 2010, at 1 1 : 4 5 a . m . , at 1531 57th Street in Brooklyn, New York,I1 he delivered the summons and complaint to "Mr. Rubin, the TenancylLeasing Manager," and "Stuart Neuman, the Property Manager," for plaintiffs' residence, who "identified themselves as1!Babad's employees, the corporate defendants' officers, and "the persons authorized to accept service of processll on defendants' behalf. Joint A f f . of p l s . in Opp'n Ex. 1. Flamm describes Rubin's and Neuman's physical appearance and characterizes them as persons of suitable age and discretion. Flamm further attests that he mailed the summons and complaint to Babad at that address. In reply, the affidavit of Isaac Rubin, Babad Management's employee, Contradicts Flamm's supplemental account of the service by denying that Rubin identified himself as defendants' officer or authorized to accept service for defendants or that Flamm inquired into Rubin's authority. Rubin a l s o attests that Neuman a l s o was not authorized to accept service for defendants and did not even speak to Flarnm. While plaintiffs' new affidavits of service show adequate re-service on defendants, including Babad, Rubin's specific rebuttal warrants an evidentiary hearing regarding all defendants. Bevilacqua v. Bloombers, L . P . , 70 A.D.3d at 412; Finkelstein Newman Ferrara LLP v. Mgnninq, 6 7 otero. 138 5 [* 7] A.D.3d 538; Poree v. Bynum, 56 A . D . 3 d 261; NYCTL 1998-1 Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d at 460. 111. PLAINTIFFS CLAIMS Findings in favor of all defendants after a hearing may dispose of this action entirely. I n the event of another outcome, however, the court addresses defendants remaining grounds for dismissal of plaintiffs various claims. Plaintiffs allege that defendants installation of a camera near plaintiffs apartment entrance invaded their privacy and caused damages based on several theories. Defendants claim that plaintiffs lacked a reasonable expectation of privacy in the hallway accessible to the public and that the camera recorded o n l y the hallway outside the apartment, as a device to determine who in fact resided in the apartment. A. Applicable Standards The court may dismiss a complaint where documentary evidence utterly refutes plaintiffs allegations and conclusively establishes a defense as a matter of law. Goldman v. Metropolitan Life Ins. Co., 5 N . Y . 3 d 5 6 1 , 5 7 1 ( 2 0 0 5 ) ; Goshen v. Mutual Life Ins. Co. of N . Y . , 9 8 N.Y.2d 3 1 4 , 326 (2002); 511 West 232nd Ownera Corp. v. Jennifer Realty Co., 9 8 N.Y.2d 1 4 4 , 152 (2002); McCully v. Jersey Partners, Inc., 60 A.D.3d 562 (1st Dep t 2 0 0 9 ) - Upon defendants motion to dismiss claims pursuant to C.P.L.R. § 3211(a) (1) or ( 7 ) the court may not rely on facts alleged by defendant to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding otero.138 6 [* 8] .. those facts and completely negates the allegations against defendants. Lawrence v. Graubard Miller, 11 N.Y.3d 508, 595 (2008); Goshen v. Mutual Life Ins. Co. of N . Y . , 98 N . Y . 2 d at 3 2 6 ; Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Yoshiharu Isarashi v. Shohaku Hisashi, 289 A.D.2d 128 (1st Dep t 2001). The court must accept the complaint s allegations as true, liberally construe them, and draw all reasonable inferences in plaintiffs favor. Nonnon v, City of New York, 9 N.Y.3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 3 2 6 ; Harris v , IG Greenpoint COTP., 72 A.D.3d 6 0 8 , 6 0 9 (1st Dep t 2 0 1 0 ) ; v. New York Hairspray Co., L.P., 67 A.D.3d 2009). 140, 144-45 (1st Dep t In short, the court may dismiss a claim based on C.P.L.R. 5 3211(a)(7) only if the allegations completely fail to s t a t e a claim. Leon v. M8rtinez, 84 N.Y.2d at 8 8 ; parris v. IG Greenpoint Corp., 72 A.D.3d at 609; Frgnk v. DaimlerChrysler Corp., 292 A.D.2d 118, 121 (1st Dep t 2002); Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183 ( 1 s t Dep t 2 0 0 1 ) . B. Intentional Infliction of Emotional Distresq To establish plaintiffs claim of intentional infliction of emotional distress, plaintiffs must show (1) defendants engaged in extreme and outrageous conduct, ( 2 ) with intent to cause or in disregard of a substantial probability that the conduct would cause severe emotional distress, (3) a causal connection between defendants acts and plaintiffs injury, and ( 4 ) severe emotional distress. Howell v. New York Post Co,, (1993); Suarez v. Bakalchuk, 66 A.D.3d o t e r o .13 8 7 81 N.Y.2d 115, 1 2 1 419 ( 1 s t Dep t 2 0 0 9 ) . To [* 9] support the first element alone, plaintiffs must show that defendants' conduct was "beyond all possible bounds of decency" and "utterly intolerable in a civilized community.Il Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synaqoque, 11 N.Y.3d 15, 22-23 (2008); Howell v. New York PQst h., 81 N.Y.2d at 122; M u m h y v. American H o m e Prods. Corp., 58 N.Y.2d 293, 303 (1983); Suarer: v. Bakalchuk, 6 6 A.D.3d 419. Defendants' commission of a criminal offense may support a finding of outrageous conduct. See Roe v. Barad, 230 A.D.2d 839, 840 (2d Dep't 1996); Laurie Marie M. v. Jeffrev T.M., 159 A.D.2d 52, 55 (2d Dep't 1990). The New York Penal Law violation plaintiffs rely on, however, proscribes surveillance o n l y of a Ifpersonat a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent." N.Y Penal Law 5 250.45(1) and (2). A legitimate expectation of privacy is a demonstrated llexpectation privacy of that society recognizes as reasonable." People v. RamirezPortoreal, 88 N.Y.2d 99, 108 (1996). The validity of an expectation of privacy depends on the circumstances. I . at d 109. While plaintiffs' expectation of privacy in their apartment behind the closed door is reasonable, see People v. Mercado, 68 N.Y.2d 874, 876 (1986), an expectation of privacy in the hallway is not reasonable because it is accessible to o t h e r persons. People v. Funches, 89 N.Y.2d 1005, 1007 (1997); Peorrle v. Fabelo, 277 A.D.2d 130, 130-31 (1st Dep't 2000). Plaintiffs admit t h a t the camera recorded what occurred i n s i d e their apartment only o t e r o . I38 8 [* 10] when its entrance doox was open, yet contend that the camera somehow intruded on their intimate activities. Plaintiffs do not deny that it would have done so only when their entrance door was open. Plaintiffs further claim that defendants installed the camera to humiliate them to the point of vacating their rent stabilized apartment. Penal Law 5 250.45(3) also prohibits surveillance without consent in specified rooms f o r no legitimate purpose. People v. Evans, 27 A . D . 3 d 905, 9 0 6 (3d Dep't 2 0 0 6 ) . Plaintiffs fail to allege, however, that the camera recorded any room to which the statutory prohibition applies, Therefore plaintiffs fail to show that defendants violated any of Penal Law § 250.45's provisions. Plaintiffs' allegations that defendants' camera allowed views i n t o their apartment falls short of extreme and outrageous behavior. Even if the camera's location were considered a trespass into plaintiffs' apartment, it would not constitute atrocious, indecent, or utterly despicable conduct meeting the requirements for an intentional emotional distress claim. Howell V. New York Post Co., 81 N.Y.2d at 1 2 6 . While installation of a camera to view plaintiffs surreptitiously where they legitimately expected privacy may constitute extreme and outrageous conduct, Sawicka v. Catena, 79 A.D.3d 848, 849-50 (2d Dep't 2 0 1 0 ) , plaintiffs maintain no reasonable expectation of privacy in the hallway where defendants installed the camera, nor where it viewed i n t o plaintiffs' apartment o n l y when plaintiffs themselves otero.138 9 [* 11] opened the door. See_ Howell v. New York Post 126. Co., 81 N.Y.2d at Insofar as defendants' installation may be considered harassment under the New York Rent Stabilization Code, 9 N.Y.C.R.R. § 2525.5, the determination of whether defendants committed harassment is f o r the New York State Division of Housing and Community Renewal. 9 N.Y.C.R.R. § 2526.2(c)(2); Sohn v . Calderon, 78 N.Y.2d 755, 765 ( 1 9 9 1 ) ; Edelstein v. Farber, 27 A.D.3d 202 (1st Dep't 2006); Maw, LLC v . Sinqh, 47 A . D . 3 d 772, 773 (2d Dep't ZOOS), Therefore, regardless o the outcome of a f hearing on service, the court grants defendants' motion to dismiss plaintiffs' claim of intentional infliction of emotional distress. C.P.L.R. § 3211(a) ( 7 ) . C. prima Facie T o r t The elements of a prima facie tort a r e : (1) intentional infliction of harm, (2) causing special damages, (3) without justification o r excuse, (4) by otherwise lawful a c t s . v, Hearet Corp., 65 N.Y.2d 135, 1 4 2 - 4 3 Freihofer (1985); Curiano v , Suozzi, 63 N.Y.2d 113, 117 (1984); Burpa Jackson Miller Summit & Spitzer v. Lindneg, 5 9 N.Y.2d 314, 3 3 2 (1983); Posner v. Lewis, 8 0 A.D.3d 308, 312 (1st Dep't 2010). Plaintiffs must plead a " s p e c i f i c and measurable loss" from the tortious conduct to establish special damages. Freihofer v. Hearst Corp,, 65 N.Y.2d at 143. See Curiano v. Suozzi, 63 N . Y . 2 d at 117; DeMicco BroF., Inc. v. Consolidated Edison Co. of N.Y., Inc., 8 A.D.3d 99, 100 (1st Dep't 2004); Viqoda v. DCA Prods. Plus, 293 A.D.2d 265, 266 (1st Dep't 2002); Have11 v. Islam, 292 10 A.D.2d 210 (1st Dep't 2002). [* 12] Malevolence must be the sole motivation f o r defendants injurious actions. Miller & Curiano v. Suozzi, 63 N.Y.2d at 117; Burns Jgckson Spitzer v. Lindner, 59 N.Y.2d at 333; Posner v. Lewis, 80 A.D.3d at 312. Plaintiffs allegation in their complaint that defendants placed the camera t o force plaintiffs and the other r e n t regulated tenants to leave in itself demonstrates a purpose beyond t h e disinterested malevolence required to sustain plaintiffs prima facie tort claim. Have11 v. Islam, 292 A.D.2d 210; Smukler v. 12 Lofts Realty, 156 A.D.2d 161, 163 (1st Dep t 1989); Rad A d v . Dep t 1989). v. United Footwear Orq., 154 A.D.2d 309, 310 (1st Plaintiffs affidavit opposing defendants motion nevertheless clarifies that defendants initially installed a camera motivated by an interest in driving o u t tenants through surveillance of their infrequent residence, but, when the camera failed to accomplish that purpose, defendants intended their continued use solely to injure plaintiffs. Plaintiffs affidavit alleges the requisite harm and damages in that the surveillance eventually forced them to leave the apartment and caused t h e m marital difficulties and expenses for mental health services. The camera also compelled Jorge Otero to disclose t o his wife Georgia Otero that when she was not in the apartment another woman visited, causing additional expenses for counseling and medication, and compelling Georgia O t e r o to resign from her j o b and h i r e an employee to replace her so she could remain at home. o t e r o . 138 Plaintiffs claim $2,500.00 per month f o r an 11 [* 13] alternative residence, $10,000.00 per year in psychiatric expenses, and $42,000.00 per y e a r for the employee. Thus, even though the complaint failed to plead disinterested malevolence or special damages, plaintiffs' affidavit supplements their complaint and cures those deficiencies. Sarqiss v. Maqarelli, 12 N.Y.3d 527, 531 (2009); Nonnon v . Citv of New York, 9 N . Y . 3 d at 827; Amgro v , Gani Realty Corp., 60 A.D.3d 4 9 1 , 492 (1st Dep't 2009). D. Civil Riqhts Law 5 5 50 and 51 Under New York law, any right to privacy derives o n l y from New York Civil Rights Law Jahr Print. & Publ., 94 §§ 50 and 51. Messenser v. Gruner + N.Y.2d 436, 441 (2000); Howell v. New York Post Co., 81 N.Y.2d at 123; Freihofer v . Hearst C o r p . , 65 N.Y.2d at 140. Use of a person's name, portrait, or other picture in advertising or a trade without prior written consent is a misdemeanor. N.Y. Civ. Rights Law 5 50; Messenqer v, Gruner + Jahr P r i n t . & Publ., 9 4 N.Y.2d at 441; Stephano v. News G r ~ u p Publs., 64 N.Y.2d 174, 182 (1984). Persons whose name, portrait, or picture is knowingly used under circumstances t h a t violate Civil Rights Law 3 50 may recover damages f o r i n j u r i e s sustained from that use. Jahr Print. & 3 0 7 A.D.2d 8 6 , N.Y. Civ. Rights Law § 51; Messenser v. Gruner c p u b l . , 94 N.Y.2d at 441; B e m e n t v. N.Y.P. Holdinqs, 89 (1st Dep't 2003); Molina v. Phoenix Sound, 297 A.D.2d 595, 596 (1st Dep't 2 0 0 2 ) ; Hernandez v. Wyeth-Ayerst L a b s . , 291 A.D.2d 66, 69 (1st Dep't 2 0 0 2 ) . The statutes must be construed narrowly, however, limiting them to non-consensual otero.138 12 [* 14] commercial appropriations of a living person s name, portrait, or picture. Messenqer v. Gruner + Jahr P r i n t , & Publ., 94 N.Y.2d at 441; Finqer v. Omni Publs. Intl., 7 7 N.Y.2d 138, 141 (1990); Stephano v. News Group Publs., 64 N.Y.2d at 183; Guerrero v. Carva, 10 A.D.3d at 105, 115-16 (1st Dep t 2004). To establish that defendants violated these statutes, plaintiffs t h u s must plead and prove defendants (1) u s e of plaintiffs picture ( 2 ) within the state of N e w York, ( 3 ) f o r purposes of advertising or trade, (4) without plaintiffs written consent. Molina v. Phoenix Sound, 297 A.D.2d at 597. Plaintiffs claim defendants use of t h e images captured by the camera, either to determine who resided in their apartment or to f o r c e out rent regulated tenants, was a trade purpose. While pleading a trade purpose to support plaintiffs Civil Rights L a w claim is inconsistent w i t h pleading disinterested malevolence to support their prima facie tort claim, plaintiffs may plead alternatively. C.P.L.R. 5 3014; Finkelstein v. Warner Muaic Group Inc., 14 A.D.3d 415, 4 1 6 ( 1 s t Dep t 2005). See Citi Mqt. G r w p , Ltd. v. Hiqhbridqe House Oqden, LLC, 45 A.D.3d 487 ( 1 s t Dep t 2 0 0 7 ) . Civil Rights Law §§ 50 and 51 do not define advertising or trade purposes, but advertising purposes include use of a name, portrait, or picture in a publication which, as a whole, is distributed to advertise or solicit use of a product or service. Beverley v. Choices Women s Med. Ctr., 7 8 N.Y.2d 745, 751 (1991); Guerrero v. Carva, 10 A.D.3d at 116; Morse v. Studin, 283 A.D.2d 622 (2d Dep t 2001). o t e r o . 138 A name, portrait, or picture is used f o r 13 [* 15] trade purposes if its use is to attract trade to a business entity. See Ippolito v. Lennon, 150 A.D.2d 300, 302-303 (1st Dep't 1989). T h e content of any text associated with the name, portrait, or picture, r a t h e r than a motive for pecuniary gain, determines whether the use is f o r trade or for excluded newsworthy purposes. 185. See Finqer v. Stephano v. News Group Publs., 64 N.Y.2d at Omni Publs, Intl., 77 N.Y.2d at 141-42; Bement v . N.Y.P. Holdinqs, 307 A.D.2d at 90. Whether defendants actually attracted customers or profited through the publication, however, are factors showing advertising or trade purposes. Rall v, Hellmaq, 284 A.D.2d 113, 114 (1st Dep't 2001). In any event, plaintiffs allege nothing that would support an advertising or a trade purpose. Without this essential element, they fail to sustain a claim under the Civil Rights Law. IV. CQNCLUSION For the above reasons, the court: grants defendants' motion to dismiss plainti ¬fs' claims for intentional infliction of emotional distress and for violation of New York Civil Rights Law §§ 50 and 51. C.P.L.R. 5 3211(a) (7). The court grants defendants' motion to dismiss plaintiffs' remaining prima facie tort claim for lack of personal jurisdiction, C.P.L.R. § 3211(a) ( 8 ) , only to the extent of ordering a hearing, but otherwise denies defendants' motion to dismiss that claim. C.P.L.R. 5 3211(a) (1) and (7). This decision constitutes the court's order. F I u w DATED: January 20, 2012 I 28 2M2 o t e r o . 138 COUNTY .. - CLERK'S OFFICE L-vy&ik.--y~ LUCY BILLINGS, J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.