Alex v Renegades Assoc., Inc.
Annotate this CaseDecided on July 17, 2007
Supreme Court, New York County
"Alex" (Expurgated caption), Plaintiff,
against
Renegades Associates, Inc., d/b/a Splash, HX Media LLC, John Doe No.1 a/k/a Yamil X, and John Doe #2 a/k/a Megatop, Defendants.
118414/06
Emily Jane Goodman, J.
Plaintiff, who describes himself as "a mere model and dancer," sues HX Media LLC (HX), a magazine, alleging defamation, inter alia, in referring to him in a listing of New York City events, as "porn star Alex," and further alleging violation of his privacy
for publishing his photograph without his consent (Civil Rights Law §51).
The instant motion to dismiss is brought by HX, arguing,
1. The announcement and photo were provided by co-defendant Splash, a source "historically reliable," and that in publishing the description which is claimed to be defamatory, HX reasonably and responsibly relied on Splash and had a right to do so;
2. That the plaintiff fails to state a cause of action in the absence of an allegation of "gross irresponsibility."
3. That the published photo is not protected by Civil Rights Law §51.
Plaintiff cross moves to amend and expand his complaint and to attribute to defendant, "gross irresponsibility."
As a dancer, plaintiff performs at a club known as Splash, one of the defendants.
It appears that Splash forwarded to defendant magazine HX, an announcement, for
publication, of plaintiff's forthcoming appearance/performance. The announcement
described him as "porn star Alex," and the item, with accompanying photo, appeared in the HX listing of New York City events of interest to the magazine's readership. It is not now suggested by defendant HX that plaintiff is, in fact, a porn star, and that the reference was true and accurate and therefore not actionable. Rather, the argument is that HX had a right to rely on the submission of Splash, a reliable source which frequently advertises in and is mentioned in the magazine. HX did, however, publish a correction and retraction.
It is undisputed that the plaintiff posed for the photograph in connection with his appearance at Splash, but he did not execute any release in favor of Splash or HX. Plaintiff claims that he believed that the photo was for one-time use only, although a leaflet with the photo [*2]had been reproduced and circulated at the club, but that Splash unilaterally sent it to HX with the announcement. The photo depicted a "buff," bare-chested muscle man in open jeans which, arguably, would not have put HX on notice that the "porn star" description was not apt.
This Court is not called upon to discuss the definition of pornography or whether
the photo is pornographic, but rather whether its use violated plaintiff's privacy as defined by the Civil Rights Law §51. The theory of defendant's motion is that the item is newsworthy and appeared in a listing of events which was not advertising.
Regarding the photo, it is appropriate to proceed with discovery and depositions to establish whether the listing and the photo did constitute "advertising" or trade use; what, if any, benefit (such as sale of advertising space) was had by HX, other than fulfilling its role of disseminating information to its readership; to develop whether the material constituted advertising and/or commercial use in a publication replete with references to Splash; whether the announcement was paid for in kind or in some manner that might have brought it into the arena of advertising/trade, or whether there is any other relationship, economic or otherwise between the two relevant defendants (although only HX has moved to dismiss), which might later place the facts within the meaning of Civil Rights Law §51, and whether anything contained in the submitted material constituted news, (Stephano v. News Group, 64 NY2d 174 [1984], Arrington v. The New York Times Co., 55 NY2d 433 [1983]).
Defendant argues that neither the announcement or picture were for "trade" and were not in the nature of advertising, but were under the umbrella of "newsworthiness" (Arrington, 55 NY2d at 433). But the issue remains whether an informal listing of events may be considered "news" or "newsworthy," by virtue of being of interest to the readership (Stephano, 64 NY2d 174). An event of public interest such as a public parade is newsworthy and a photo is not actionable (Murray v. New York Magazine Co., 27 NY2d 406 [1971]). It is important to note that the Court of Appeals in Stephano distinguished for purposes of newsworthiness, whether the matter of "public interest" is "the model's performance" (instant case) or "the availability of a clothing item," modeled by the plaintiff.
As to the words claimed to be actionable (as well as the photo), defendant does admit that no investigation was done, but plaintiff may inquire, inter alia, into whether any steps were or should have been taken regarding such submission to assure its veracity.
Plaintiff's cross motion to replead consistent with his proffered amended complaint is granted in accordance with this state's liberal policy of amending pleadings, and there being no prejudice to defendants at this early stage of litigation. Although plaintiff, in support of cross motion to replead, i.e., amend complaint, relies on an affirmance of a decision by this Court, it should be noted that what was upheld there, was dismissal with leave to replead. (Putter v. Feldman, 13 AD3d 57 [1st Dep't 2004]). Nevertheless, pursuant to CPLR 3025 (b), such leave is to be freely' granted (Wheaton v. Guthrie, 89 AD2d 809, 810-11 [4th Dep't 1982]).
The motion to dismiss may be renewed, if appropriate, upon after pleadings have been amended and the completion of discovery. [*3]
It is hereby
ORDERED that motion to dismiss is denied with leave to renew and it is further
ORDERED that cross motion to amend complaint is granted.
This constitutes the Decision and Order of the Court.
Dated: July 17, 2007
ENTER:
J.S.C.
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