Leviston v Jackson

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Leviston v Jackson 2013 NY Slip Op 33388(U) December 3, 2013 Supreme Court, New York County Docket Number: 102449/10 Judge: Paul Wooten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 11212014 EME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY HON. PAUL WOOTEN Justice PART 7 , 102449110 INDEX NO. MOTION SEQ. NO. 004 JAMES JACKSON Ill, alkla 50 CENT, Defendant. efendant for summary judgment pursuant to PAPERS NUMBERED f Motion/ Order to Show Cause - Affidavits g Affidavits - Exhibits ... - Exhibits (Memo) Affidavits (Reply Memo) his action for Intentional Infliction of Emotional Distress (IIED), Defamation and 51 , defendant Curtis James Jackson Ill, alkla ackson) moves, pursuant to CPLR 3212, for summary judgment dismissing the Plaintiff Lastonia Leviston (Leviston or plaintiff) opposes the motion, except that she withdraw her third cause of action for defamation, and has done so. BACKGROUND ackson, who goes by the name 50 Cent, is a well-known rap musician. He maintains nparty Rick Ross (Ross), another rap [Memo] of Law in Support, p. 3). As Jackson s it, rap wars or beefs, are common in the rap and hip hop culture, and involve irritating s to create more interest, develop more awareness forAhemselves and create rial up to standard quick Page 1 of 12 Frk& D -9 m 3 [* 2] n Before Trial [EBT], p. 13-14). As part of his rap war with Ross, Jackson posted I videos on his website, thisis5O.com. Those videos mocked Ross, generally through a Jackson created called Pimpin Curly, Jackson s alter ego. Ross started calling urly during their rap war, and Jackson added the name Pimpin to mock Ross and of a dispute with someone else. The videos were uploaded to a YouTube channel n s employees created in 2008. s is the father of Leviston s younger daughter. At the time that Leviston was h Ross, Ross had not yet become well-known or financially successful. Ross is also r of another child, whose mother, Tia Kemp (Kemp), went to Jackson s offices in New ng Jackson s rap war with Ross. Jackson created a video in which he interviewed alleged that Ross was not taking care of his child or paying child support. Jackson , , ther videos with Kemp. Those videos were also posted on YouTube. 2008, Leviston who lived in Florida, testified that she met nonparty Maurice Murray n New Jersey (Opposition, Leviston EBT, exhibit A at p. 36). On June 30, 2008, and Murray filmed themselves having sex at Murray s apartment in Newark, New Jersey, using Murray s camera (the Videotape) (id. at 66-67). According to plaintiff, the two agreed that the Videotape wogld be kept private, just for their own use (id. at 69). Leviston and Murray broke up twice, and each time they discussed either giving the Videotape to Leviston or g it. The first time they broke up was around Labor Day in 2008. They reconciled in 2009, at which time Leviston tried unsuccessfully to find the Videotape, which d he could not find (id. at 84-88). Leviston maintains that June 30, 2008 was the only tme that she was ever videotaped engaging in sex (id. at 70). She denied ever being a call girl or companion, although she acknowledged posing for a magazine that included her photograph as that of a call girl, by the name of Brooke. Some time during the first half of March 2009, Murray brought the Videotape to Page2of 12 [* 3] n, whom he had never previously met (Opposition, Jackson EBT, exhibit C at 15). stified that he never had any contact with Leviston, nor did he speak to her about the e (id. at 77). Upon viewing the Videotape, Jackson stated that he recognized Leviston er of Ross s daughter (id. at 17), and gave the Videotape to his computer person, her Singh a/k/a Broadway (Singh), who took material off the tape and converted it into mat so that it could be saved to his computer and edited (id. at 34-35; Opposition, T, exhibit E at 37). ackson testified that he decided to inject his character, Pimpin Curly into the , and performed a skit that was spontaneous and not rehearsed (Opposition, Jackson hibit C at 35-37). Singh ran the camera, and edited the Videotape, blurring Murray s order to protect his identity, yet Leviston s face was not blurred (Opposition, Singh EBT, at 41-42; Corentin Villemeur EBT, exhibit D at 77). On the tape, Jackson states that r the Videotape, which he reasserted in a radio interview with Tim Westwood that he few dollars (Opposition exhibit H at 5), however at his deposition, he denied paying for ition, exhibit C at 76-77, 102-103). ckson placed a trailerfor the video on his website, thisis50.com, on or before March he website is owned by Jackson, and he makes money from it through advertisers. attracts millions of visitors every year. Jackson also used the Twitter page of his newly er website, boobootv.com (BooBooTV), to promote the trailer and the full length he trailer was picked up and posted on another wekite, worldstarhiphop.com, the and it also appeared on the same date on BooBooTV. BooBooTV does not have rs, and Jackson testified that he created it in order to be able to post the edited on a site that had no advertising. e following evening, March 13, 2009, the edited Videotape went live on the Internet, icked up by many websites. Jackson maintains that Ross is the one responsible for Page 3 of 12 [* 4] lease of the Videotape because he somehow obtained it from an email account, either an unt of G-Unit Records which is Jackson s record company, or one of his employee s onal accounts (exhibit C at pg 55), and released it on his website thisissabrinassin.com ckson had a chance to release it. Jackson stated that he does not know how Ross he Videotape from the account it was contained in, nor does he know for sure that ke into the account (exhibit C at 40-41). In their EBT testimony, neither Jackson nor his computer employees testified to having any knowledge or evidence that Jackson s had been hacked (exhibit C at 139-140; exhibit D at 104; exhibit E at 68-69). Singh that the Videotape was first made accessible on the Internet through the website hanrap.com and thisissabrinassin.com (exhibit E at 50). The people working at s office were surprised to see it on the Internet at the time, but there was no on into how the Videotape was leaked (id. at 68). viston s forensic computer expert, Steve Burgess (Burgess), viewed the full, 13dited Videotape on hollyhoodtv.com, thisissabrinassin.com (allegedly Ross s website), worldstarhiphop.com, thisis50.com, showhype.com, rapbasement.com, boobootv.com, thatmoodyet.com and pornhub.com. Thisis5O.com had a link to be redirected to TV to watch the Videotape. On July 7 , 201 1, Burgess also viewed the Videotape on the worldstaruncut.com, where the counter next to the Videotape reflected that there were 9 hits on the Videotape (exhibit M [PLOO412]). eviston kept a diary during the period immediately prior to and after the release of the e. She testified that she found out about the existence of the edited Videotape on her ay, March 1I, 2009. The diary reveals that Leviston entertained suicidal ideation as a e release of the Videotape, and that she was unable to function normally in her daily life. Leviston began treatment with Dr. Woodrow Wilson (Dr. Wilson), a licensed psychologist in the State of Florida, on April 3, 2009 (Opposition exhibit T, exhibit 15 at PLOO83-PLOO87) Page 4 of 12 [* 5] He states that he has extensive experience treating patients with post traumatic stress disorder (PTSD). Dr. Wilson diagnosed Leviston with PTSD as a result of the exposure of the Videotape, as well as major depressive disorder which flowed from the PTSD (exhibit T at 60, , 113-118, 131-132, 138). In October 201 1, Leviston was evaluated by Dr. Louise Fitzgerald (Dr. Fitzgerald), a ensic psychologist and Emeritus Professor at the University of Illinois (Opposition bit U, appendix D). Dr. Fitzgerald diagnosed Leviston with severe major depressive order, with anxiety disorder not otherwise specified, with all the symptoms and impact of PTSD (id. at 35-36). Dr. Fitzgerald concluded that the release of the Videotape exacerbated her conditions. Dr. Fitzgerald stated that the fact that Leviston was able to obtain her GED, and go to work is not inconsistent with the diagnosis of her depression (id. at DISCUSSION Civil Rishts Law 56 50 and 51 Leviston alleges in her first cause of action that defendant used her name and/or picture ion of New York Civil Rights Law $5 50 and 51. In order tgestablish a claim under Civil Law §§ 50 and 51, a plaintiff must demonstrate that the defendant used the plaintiff s rait, picture or voice in the State of New York for purposes of advertising or trade, t the plaintiff s written permission (Molina v Phoenix Sound, 297 AD2d 595, 597 [Ist Dept g Civil Rights Law 9 51; Guerrero v Carva, 10 AD3d 105 [Ist Dept 20041). Civil Rights Law § 51 authorizes a civil action for injunctive relief and damages, including exemplary ages if a defendant acts knowingly in violation of that protection (Beverley v Choices s Med. Ctr., 78 NY2d 745 [1991]). Under Court of Appeals precedent, the statute is to owly construed and strictly limited to nonconsensual commercial appropriations of the name, portrait, or picture of a living person (Messenger v Gruner + Jahr Print. & Pub/., 94 Page5of 12 [* 6] d 436, 441 [2000], citing Finger v Omni Publications Intern., Ltd., 77 NY2d 138, 141 19901). Here, there is no dispute that the Videotape was made available in New York, and that id not provide any written consent for its use. use for advertising purposes has been defined as a use in, or as part of, an ment or solicitation for patronage (Nores v Mosler Saft Co., 7 NY2d 276, 284 [ 19591). maintains that the posting of the Videotape was not for advertising purposes, as d by the hasty construction of the BooBooTV website, which did not have any rtisers nor did it sell any products. Thus, defendant argues that, in posting the Videotape, significant steps to avoid attracting trade or to advertise. He claims that his sole motive pond to Ross s disrespecting him. cannot be said that the posting of the Videotape was for advertising purposes as on did not use it to solicit patronage nor did he use it to advertise or promote his music. onally, and similar to McGraw, plaintiff has made no allegations that Jackson profited off deotape, or that he charged anything to view the Videotape. However, the fact that no sing was involved is only one inquiry. The question remains whether they were used for rposes, which is separate from advertising purposes (see Beverley v Choices Women s Inc., 78 NY2d 745, 751 [1991]). Further, a plaintiff cannot recover under section 51 if which his or her image was put is in the context of reporting a newsworthy incident, also serves a trade purpose (Stephano v News Group Publs., 64 NY2d 174, 184 Here, it cannot be said that the dissemination of an explicit sexual videotape was orthy, despite defendant s argument to the contrary. Even if one could strain the of newsworthy to include the fact that there was such a tape, posting an explicit [* 7] d Jackson to make a profit (Rall v Hellman, 284 AD2d 113, 114 [Ist Dept 20011). There is evidence that the trailer and the Videotape boosted traffic on some of the websites where the pe was posted. However, as Jackson and Singh testified, the intent behind the was to respond to Ross s disrespectful comments, and boobootv.com was created vertisement content specifically for posting the Videotape. dditionally, Jackson relies on the case McGraw v Wafkins (49 AD2d 958, 959 [3d Dept In McGraw, plaintiff agreed to pose nude for artistic photographed poses to be used in at the defendant was producing, and she executed a release valid against any claims nt to Civil Rights Law $5 50 and 51. Shortly after the scenes had been filmed plaintiff her mind and obtained a written agreement from the defendant that voided the release aintiff had signed, and which stated that defendant would not utilize, publish or exhibit /- hotographed poses of plaintiff in his film, nor show them to any other person (McGraw, 49 58). However, the plaintiff alleged in her complaint that despite this agreement, nt included a nude scene of plaintiff in his film and has publicized and exhibited the film to people known to plaintiff and others, as well as shown other poses of plaintiff that were not n the film (id.). The Court found that the plaintiff s claim did not fall within the e provisions of Civil Rights Law §§ 50 and 51 (id.). Specifically, it was noted that id not demonstrate in her pleadings and motion papers that the plaintiff s picture had for advertising or trade purposes, nor did plaintiff allege that the defendant made a any of the alleged exhibitions of the film. eviston proffers that as a part of the 50 Cent brand, Jackson has created ately ten different video skits in his character as Pimpin Curly and mocked Ross. ally, as part of the beef with Ross, Leviston maintains that Jackson has created a series ed cartoons also posted on YouTube called Officer Ricky (see Leviston Memo of . Further, Plaintiff s forensic computer expert, Burgess testified at his deposition that Page7of 12 [* 8] , 50.com had a traffic rank of 3100 on March 14, 2009 (Burgess EBT, exhibit K, pg. 163 s 11-12), and that the Videotape posted on wor1dstarhiphop.com had 468,222 views as of date that he printed out the exhibits of screen shots used at his deposition (id. at pg. 1834 [PL414 and PL4151). Furthermore, Burgess testified that on worIdstaruncut.com, the ter next to the Videotape reflected that there were 3,233,369 hits on the Videotape as of ate he printed out the screen shot of the website for his deposition. The Court finds plaintiff s arguments and Burgess testimony unpersuasive as it relates ebsites where the Videotape was posted where no commercial connection exists between aid websites and Jackson, ie worldstarhiphop and worldstarhiphop.com (see Rall v Hellman, 4 AD2d 113 [Ist Dept 20011 [ what is alleged [in the complaint] is that defendant utilized the icism in order to generate discussion on a website, a site to which defendant was not even ged to have been commercially connected. This is hardly a basis for a Civil Rights claim ]). wever, plaintiff does put forth testimony from Burgess regarding thisis5O.com and boobootv.com which are websites run by and affiliated with Jackson and his record company. Burgess testified regarding a Google analytics report showing a graph that shows a spike in boobootv.com around the date that the Videotape was posted, wherein the website eived about 13,000 hits, and by the 30thof March the number of hits decreased significantly ess EBT, p. 230-237). The same is true for thisis5O.com, wherein Burgess testified that a le analytics report showed that traffic on the site spiked to its highest level between ary IO, 2009 and April 15, 2009, wherein the visitors dropped off after that time period (id. 6). Thus there is evidence that the posting of the Videotape on these websites generated rest in Jackson. The record reveals that Jackson had an ongoing rap war with Ross, and it to generate interest in himself and to attract viewers to his website, which qualifies as a purpose. Thus, it cannot be concluded as a matter of law that there was no trade [* 9] ary judgment on this cause of action. Intentional Infliction of Emotional Distress e second cause of action, Leviston alleges that Jackson s actions in posting the aused her severe emotional distress. The elements of a cause of action for the infliction of emotional distress are: (i) extreme and outrageous conduct; (ii) intent to isregard of a substantial probability of causing, severe emotional distress; (iii) a ection between the conduct and the injury; and (iv) severe emotional distress New York Post Co., 81 NY2d 115, 121 [1993]). ckson maintains that this cause of action must fail because Ross first publicized the Videotape on the Internet, and, therefore, a nonparty s actions were the sole proximate cause s distress (see Wojtasik v State of New Yorh, 48 AD3d 1129, 1130 [4th Dept 20081). r contends that there is a lack of medical evidence of Leviston s emotional distress, or adequate evidence of such distress, which is fatal to her claim. It is noted that, in t of this motion, Jackson does not dispute that the posting of the Videotape qualifies reme and outrageous conduct. Nor does he dispute that he disregarded a substantial that posting the Videotape would cause extreme emotional distress. Thus, the only issue on which this summary judgment rests is whether Jackson caused Leviston severe istress. Jackson maintains that there was no causation because Ross initially osted the Videotape, and that Leviston has failed to produce adequate evidence of severe Jackson first contends that the evidence demonstrates that Ross, not Jackson, first posted the Videotape. Even allowing that Ross posted it first, however, Jackson s further It is not clear who first posted the Videotape. Even if it were conclusively ascertained that it first n ThisisSabrinasSin, there is no conclusive evidence that the site is under Ross s control urther there is an add videos button on that site which enables other people to upload videos, so it is ho actually uploaded the Videotape to thisissabrinassin corn Page 9 of 12 [* 10] suffered any distress from it had Ross not posted it (Amended Memo of Law at 14) is portable. There is no question that, before the Videotape was posted, Jackson had d the trailer on thisis50.com. Leviston knew about the trailer, and was already upset by nowing that both the trailer and the Videotape would be available on the Internet, before the eotape, or even the trailer, was posted. Further, there is little doubt that Ross would not posted it had it not been obvious that Jackson was prepared to post it, and in fact did post to it approximately an hour after Ross posted it. Consequently, Jackson has failed to nstrate that Ross s posting of the Videotape an hour prior to Jackson posting a link to that was the sole proximate cause of Leviston s injury. Jackson s next basis for seeking summary judgment on this cause of action is his ion that Leviston has failed to demonstrate that she suffered extreme emotional distress ers evidence that she obtained her GED and held two jobs during this time period, which, ims, demonstrates that she did not suffer extreme emotional distress. He also relies on ct that Leviston did not seek counseling until her attorneys directed her to do so and / mended a psychologist. While it is true that Leviston s attorneys recommended her psychologist, it is also noted e first saw Dr. Wilson approximately three weeks after the Videotape first appeared on Internet. However, such is not the case regarding Dr. Fitzgerald. Leviston put forth reports rom Dr. Wilson and Dr. Fitzgerald who both concluded that she was suffering from a major essive disorder and demonstrated symptoms of PTSD, which they both concluded ed from the posting of the Videotape. However, Jackson proffers that Leviston did not nt any medical evidence of physical harm to support her claim, and relies on the First ment case, Walentas v Johnes (257 AD2d 352, 353 [I st Dept 19991 [internal citations d]), which states that [tlhe plaintiff is required to establish that severe emotional distress Page 10 of 12 [* 11] the mere recitation of ulative claims. Jackson proffers that plaintiff acknowledges that she suffered no physical nd relies solely on psychological harm in support of this cause of action. This is a case of first impression wherein the defendant does not dispute that the action lained of qualifies as extreme and outrageous conduct, and also does not dispute that he rded a substantial probability that the action complained of would cause extreme ional distress. Thus, the only issue on this claim for summary judgment is whether son caused Leviston severe emotional distress. The case at bar does not fall within the narrow line of cases where a plaintiff need not medical evidence to support her injuries when the claim is inherently genuine for purely motional harm (cf. Plunkett v NYU Downtown Hosp., 21 AD3d 1022, 1022-23 [2d Dept 20051 tiffs action to recover for the emotional injuries flowing from the defendant s alleged ranted delay in notifying them of their father s death and its interference with their right to possession of his remains ]; Garcia v Lawrence Hosp., 5 AD3d 227, 227-8 [Ist Dept 20041 tiff alleges that defendant hospital brought her day-old baby to her for breast-feeding after d been medically sedated, that the sedative caused plaintiff to fall asleep on top of the , smothering him to death after the defendant left them alone unsupervised]; see also v State of New York, 39 NY2d 803 [1976]). Here, there is testimony from both Leviston s treating psychologist and from Dr. ald that they engaged in testing plaintiff, and the results of those tests support her claim mental and emotional distress. Leviston s diary and her testimony further confirm her nal distress and suicidal thoughts. These verified emotional and mental symptoms, these circumstances, are sufficient to rebut Jackson s motion for summary judgment on cause of action. Furthermore, whether plaintiff s mental suffering was genuine and extreme estion for the jury (see Halio v Lurie, 15 AD2d 62 [2d Dept 19611; Murphy v Murphy, 109 Page 11 of 12 [* 12] , 966 [3d Dept 19851). As such, the portion of defendant's motion is denied. ton withdrew her cause of action for defamation. Therefore, that portion of motion for summary judgment is moot. CONCLUSION cordingly, it is hereby RED that plaintiff's cause of action for defamation is permitted to be withdrawn; ERED that the defendant's motion for summary judgment seeking dismissal of the denied; and it is further, ERED that counsel for plaintiff is directed to serve a copy of this Order upon the /- e Clerk of the Court who is directed to enter judgment accordingly; and it is ERED that counsel are directed to appear for a pre-trial settlement conference on 014, at 60 Centre Street, Room 341, Part 7. onstitutes the Decision and Order of the-Court. . -- I il Check one: [-1 FINAL DISPOSITION Check if appropriate: c-1 DO N NON-FINAL DISPOSITION T 11 REFERENCE 1 . OEC Page 120f 12 - 9 2013