Child v Renda
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Child v Renda 2012 NY Slip Op 32228(U) August 20, 2012 Supreme Court, New York County Docket Number: 603075/05 Judge: Debra A. James 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. iC*\INEC [* 1] ON 812712012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: DEBRAA. JAMES PART 69 Juatlcr Index NQ.: NADINE CHILD, Plaintiff, Motion Date: -v- 12113111 Motion Ssq. No,: RICHARD RENDA, RICHARD RENDA d/b/a TOTALLY COOL, RICHARD RENDA d/b/a TOTAILYCOOL.NET, R I C k RENDA d / b / a THEORIGINALTOTALLY COOL.COM, and JOHN DOES 1-5, M~~~~~ Defendants. 09 Nom: FILED Au621pt2 The following papers, numbered 1 to 7 were read on this motion , t motion for sanctions. Notice of Motion -Affidavits -Exhibits Notice of Cross Motion-Answering Affldavits - Exhibits Replying Affldavits Exhibtts - Cross-Motlo n: Ye8 NO Plaintiff Nadine Child movea pursuant to CPLR 5 4 4 0 4 ( a ) t o set aside the j u r y verdict as a matter of law and for an order directing t h a t judgment be entered in favor of the plaintiff, or in t h e alternative, f o r a new trial. Defendant cross moves pursuant to 22 NYCRR §130-1.1 for sanctions against plaintiff. Both motions are denied. Plaintiff, a professional f a s h i w model, alleges i n her complaint t h a t defendant Renda and t h e entities he controls used her name and image for commercial purposes, without h e r Check One: Check if appropriate: FINAL DISPOSITION DO NOT POST NQN-FINAL DISPOSITION REFERENCE [* 2] authorization, and therefore v i o l a t e d her rights pursuant to Civil Rights Law 5 5 50 and 51. She seeks an injunction compelling defendant to remove such photographs and her name from his website. She also claims that defendant digitally altered her image in one of t h e photosl he poBted on hie electronic magazine webaite in such a way that defamed her, and from which ehe suffered damages. The parties m e t each other when defendant was retained as a stylist by a now deceased world renowned photographer for a photo shoot in which plaintiff was the subject. Defendant befriended plaintiff at the completion of the shoot. With t h e proapecta of references, plaintiff was convinced by defendant to participate in hia filming of her interview f o r a television cable network program, hosted by h i m , after which they exchanged pleasantries by electronic mail f o r a period of time. Sometime during that period, defendant posted some photographs from the photo shoot on his electronic magazine webaite. When a friend contacted her Home time l a t e r about the website, plaintiff became alarmed by i t s strangeness and commenced this action. Defendant asserts that plaintiff agreed t o his u g of the le photos and that he encouraged her to l o o k at the electronic magazine, when he first mounted it on the web, and t h a t when she viewed it, she wrote him that 'The verdict ia that I like it", and that, i n any event, h i s use of the photm is exempt from the -2- [* 3] restrictions of the Civil Rights Law because it was newsworthy and of public interest. P l a i n t i f f counters that without her knowledge or consent, defendant published the shoot photographs in connection with an advertisement for mosquito repellant t h a t appeared underneath her image. She urgee that defendant used her image f o r the purposes of advertising or trading a product, and that such uae is neither newsworthy nor far a public interest purpoge. Plaintiff also argues that t h e photographs, one of which appears on t h e homepage of defendant Renda's website, do not come under any newaworthy privilege since defendants impermieeibly used the images and the entire publication, for that matter, to express his views on religion and spirituality. She f u r t h e r alleges that a line that defendant digitally added to another photograph that he posted on t h e website depicted a stripper's pole, constituting a suggestion that she is a promiscuoua person, which is per ae defamatory. After a trial before this c o u r t , on June 3 , 2011 t h e j u r y rendered a unanimous verdict in favor of the defendante finding that (1) defendant Renda's UBB of plaintiff's name and/or image was a newaworthy event or a matter of public interest; ( 2 ) defendant Renda's posting or publication of the name and/or image of plaintiff on which defendant superimposed a vertical line was n o t defamatory. , - 3- [* 4] The statutory provisions, "Civil Rights Law SFI 50 and 51, read ( 5 50 in whole, 8 51 in pertinent part): 5 50. Right of privauy. person, firm or corporation that U S ~ Bfor advertirsling purpose@, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, ..., ia guilty of a misdemeanor. § 51. Action f o r injunction and for damages. 'Any person whose name, portrait or picture is used within this state f o r advertising purposqs Qr for the purposes fo trade without the written consent first obtained as above provided many maintain an equitable action in the supreme court". A Creel. v Crown Pub& As ., 115 A.D.2d 414, 415 ( l o t Dept. 1985). for the definition of defamation: Defamation, the making of a faltae statement about a person that "tends to expose t h e p[ereon] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in t h e mind6 of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society" # t & Wbton, 4 2 N.Y.2d 3 6 9 , 7 7 9 , 397 N.Y.S.2d 943. 366 N - R * 2 d1299 r19771, c e x t . denied 4 3 4 U.S. 969,. 98 $.Ct. 514, $4 J1bRd.2d $56 [1?771; see GoZ& v. &g&,drerel'/Sta.r Gxoug, 89 N.Y.2d 1074. 6 5 9 N,Y.$.2d 836, 681 N . , E , 2 d 1282 119971 1 , can take one of two forms---slanderor libel. Generally speaking, slander is defamatory matter addressed to the ear while libel is defamatory matter addressed to the eye (2 PJI2d 3:23, at 196 [ZOOS]; rgee Prosser and Keeton On Torts, 4! 112, at 786 [5th ed.];Sack on Defamation, § 2.3,at 2-9 [3d ed.]). Libel is broken down into two diacrete forms---libelper se, where the defamatory statement appears on the face of the communication, and libel per quod, where no defamatory statement ia preaeqt on the face of the communication but a defamatory import arisee through reference to facts extrinsic to the communication (see 2 pJI2d 3;2a, at 197, 3:24 at 275; see a l s o m e v . Oranse C O W ~ Y P u b l a . , 1.7 N.Y.2d 2 8 4 . 2 70 N.Y.S.2d 5 9 2 . 21 7 N.E.2d 650 [19661 :cole Fischer Roqow. mr=* * C M l V , Lac., 2 9 A.Qn2d 4 Z 7 S , 4 2 6 . v -4- [* 5] 2 8 8 N.Y,$.2d 556 [Stevens, J.. 19681 affd. 2 305 N,Y.$.2d 154, 252 N A 2 d 633 [19691 1 FN3. Where the defamatory statement is libelous per se the plaintiff can recover damages without pleading and proving "special harm" (2 pJI2rl 3:23 , at 197-199, 3:24, at 275-276), i . e . , "the loss, usually monetary, of some gain or advantage which would have come to t h e plaintiff but f o r the defamation" ( d d . , 3:23, at 198). If, however, the defamatory statement is libelous per quod, the plaintiff can only recover damages if she pleads and proves such harm (id. at 197-199, 3:24, at 275-276). a ,AD3d 64 407, 411-412 ( l nDept 2009). t The jury verdict in favor of defendant may not be set aside unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the verdict f o r the defendant could not have been reached on any fair interpretation of t h e evidence. on v The New Y s k C P t v H o w n u AuLhoritv , 3 1 ADZd 611, (1"' Dept 1968). It may not be vacated a8 inconsistent and againat the 6 weight of the evidence a 1 long aa thgre is at least one fair interpretation of the evidence to support it. w o n v ViclQ U t v Corn=, 215 A.D.2d 174 ( l m t Dept 1995). While the c o u r t observes that there was a plethora of evidence of defendant's extreme eccentricities, the testimony and exhibits a l s o credibly preponderated that h i s web content f contained articles about fashion, and that the use o plaintiff'e image therewith wae of public interest and/or newsworthy, no matter how otherwise bizarre. Likewise, aside from plaintiff'e claim that the line superimposed on her photograph was a @tripper's pole, there was no evidence that such was the case. -5- [* 6] Nor is there any reaaon in law to overturn the jury'e decision (Meaaenqer e x , r e l , M e a e a q e r w e r J v & PubIishins, 94 NY2d 436 [2000]) so the I jury'B P r a i n s , anti findings will riot be disturbed. Plaintiff seeks to compel defendante to cease publishing additional communications, which she contends are confidential and privileged, on their wzbsitcs. when it, inter She also argues that a new u,permitted defendbnt to commit perjury in teatifying under oath that he produced at trial a full, complete and unedited set of e-mail exchanges between plaintiff and defendant and to introduce a box load of his press credentials, This c o u r t finds none of plaintiff's arguments to be persuasive. F i r s t , it was within the province of the j u r y to determine issues of credibility, which included whether they believed defendant's testimony as to any material matter, such as whether such emails were important to t h e iBaues in the caae, and if BO, whether t h e y were complete and unaltered. It would be error for thie court to ueurg the jury's function. -0 cab C o r n , . I v J w 26 AD2d 812 ( l m t Dept 1966). Second, defendant's posting of communications about plaintiff's counsel and the case on defendants' website does not implicate any privilege or confidences of plaintiff. Whether or -6- [* 7] not ill adviaed in terma of hig own interests, defendant is free to decide to waive confidences and reveal his communications from and with his lawyer. Although not argued by p l a i n t i f f , upon reflection, t h e court likely should not have admitted the prees credentials, a8 defendant's testimony was insufficient to lay a foundation f o r mame as buainess records, and the testimony of persona with knowledge employed by the variou media outlets would have been necessary. Nonethele~s,the court finds that such documents were not critical to the fact finding determinatipn, and t h a t their admission was therefore harmless. V o f L i n d s a v N e , 300 AD2d 216 ( l o t Dept. 2002), Plaintiff did not come forward with any evidence to persuade the court that defendqnt had failed to d i m l o s e hira press credentials prior to placing the actiqn on the trial calendar, and therefore there is no evidence of willful or contumacious conduct with r e s p e c t to the discovery phase of the lawsuit on the p a r t of defendant or hie attorney. The court would point out t h a t the question of whether defendant met the definition of a "professional journalist" under Civil Rights Law 79-h, New § York's Shield Law, was never an issue a t the trial [s M a t t d c, 70 NYZd 151 (198711, although t h e press credentials were Borne defendant was evidence that engaged in journali~ticpursuite. N o r can -7- - [* 8] plaintiff show surprise about defendant's position with respect to his journalistic bona fides, aince at the inception of their early friendship he purported to be a cable televieion show host, and she allowed herself to be intenriewed and filmed for broadcasting by him. Moreover, the jury rejected plaintiff's contention t h a t defendant used h e r photograph to market mosqui-.~ repellant, or for o t h e r trade, implicitly accepting defendant's argument that TOTALLYCOOL.NET, however peculiar its content, waa a media enterprise. & ~ v e r l e v Choices Wornenla Med. Center, v 78 NY2d 7 4 5 , 7 5 2 (1991). Finally,,defendants' croas-motion f o r an order pursuant to 2 2 NYCRR 130-1.1 for sanctions against plaintiff in the amount of $4665.00 is denied, since the argumentq made in plaintiff's application to set aeide the verdict or move f o r a new trial are colorable. Accordingly, it i e hereby ORDERED, that the motion to set aside t h e verdict and t h e croea motion for sanctions against plaintiff are denied, and it is further ORDERED that t h e counterclaim interposed in the answer is dismisaed, as a matter of law, and it is f u r t h e r ORDERED that judgment shall be entered dismissing the complaint on-theverdict rendered on June 3 , 2011 and dismissing t h e counterclaim; and it ~ E If u r t h e r -0- - [* 9] ORDERED that t h e Clerk is d i r e c t e d to enter judgment accordingly. Dabd: Auqust 20, 2012 . ENTER : . F 1.LE D NEW YORK CNNTV CLERKS OFFICE -9-
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