Chanti Nieves v Home Box Office, Inc.

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Nieves v Home Box Off., Inc. 2006 NY Slip Op 04367 [30 AD3d 1143] Decided on June 6, 2006 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 June 6, 2006
Andrias, J.P., Friedman, Sullivan, Nardelli, Malone, JJ.
8697 Index 100966/05

[*1]Chanti Nieves, Plaintiff-Respondent,

v

Home Box Office, Inc., et al., Defendants-Appellants.




Davis Wright Tremaine LLP, New York (Laura R. Handman of
counsel), for appellants.
Arshack & Hajek PLLC, New York (Daniel N. Arshack of
counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered January 20, 2006, which denied defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, with costs.

Plaintiff seeks to recover damages pursuant to Civil Rights Law § 51 for the unauthorized use of her image in a television show produced and aired by defendants about a family of bounty hunters. It is undisputed that plaintiff's image was used during the show and that its use was accompanied by remarks by the show's cast in which the subject of plaintiff's sexual allure was crudely debated. Inasmuch as defendants failed to demonstrate that the use of plaintiff's image in this manner bore a "real relationship" to the subject matter of the show, and that plaintiff was not "singled out and unduly featured merely because [she was] on the scene" (Gautier v Pro-Football, Inc., 304 NY 354, 359 [1952]; see Blumenthal v Picture Classics, Inc., 235 App Div 570 [1932], affd 261 NY 504 [1933]), the motion to dismiss the complaint was properly denied (cf. Finger v Omni Publs. Intl., Ltd., 77 NY2d 138, 141 [1990]; Murray v New York Mag. Co., 27 NY2d 406, 409 [1971]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2006

CLERK