New York Common Law

  1. Breach of Contract/Promissory Estoppel

    1. Introduction

      It is unlikely that a WMC victim will bring a breach of contract action. As shown below, in a situation where parties have a contract involving consent to use an image of the plaintiff (be it for advertising purposes or otherwise), any claim that follows would arise under N.Y. Civil Rights Law §§ 50-51.

    2. Elements

      Breach of Contract

      (1) Existence of a contract;

      (2) Claimant’s performance under the contract;

      (3) Defendant’s breach of that contract; and

      (4) Resulting damages.1

      Promissory Estoppel

      (1) A promise that is sufficiently clear and unambiguous;

      (2) Reasonable reliance on the promise by a party; and

      (3) Injury caused by the reliance.2

    3. Cases

      1. Wrangell v. C.F. Hathaway Co., 253 N.Y.S.2d 41 (N.Y. App. Div. 1964)

        • Procedural Posture: Appeal from order denying defendant’s motion to dismiss plaintiff’s claim for a violation of his right to privacy through use of his photograph in connection with defendant’s advertisements of women’s blouses.

        • Law: Breach of contract; N.Y. Civ. Rights Law §§ 50 & 51

        • Facts: Plaintiff alleged that the defendant violated his right to privacy by using his photograph in connection with its advertisements of women’s blouses. Defendant put forth exhibits showing that the plaintiff and defendant had signed an agreement several years earlier for plaintiff’s photograph to serve as its main advertisement for its shirts, and that the defendant had then trademarked the photograph. Plaintiff asserted that the defendant was not authorized to use his photograph without giving plaintiff extra compensation.

        • Outcome: The court reversed the lower court’s denial of the motion to dismiss and dismissed plaintiff’s claim. The court determined that through his contract for employment and his consent to defendant’s use of his photograph in its trademark, “plaintiff relinquished his right to privacy.”3 The court explained that “[i]n essence, plaintiff’s action is for breach of contract, that is, the use of his photograph in excess of the right and privilege which he granted to defendant. Section 51 of the Civil Rights Law does not afford relief for mere breach of contract. ‘[R]esort to the statute under these circumstances perverts its purpose. . . We make no determination as to whether or not plaintiff has a cause of action for breach of contract or other relief.”4

    4. Practice Pointers

      If a plaintiff’s suit arises from the unlawful use of her image in contravention of an agreement with the defendant, then the plaintiff should proceed under N.Y. Civil Rights Law §§ 50 & 51, not under breach of contract.

      A plaintiff can recover lost profits due to a breach of contract only if he can demonstrate the existence and the amount of such damages with reasonable certainty.5 “[T]he damages may not be merely speculative, possible or imaginary.” Id. Rather, they must be “capable of measurement based upon known reliable factors without undue speculation.”6 “Projections of future profits based upon a multitude of assumptions that require speculation and conjecture and few known factors do not provide the requisite certainty.”7

      A court may allow a party to seek punitive damages where a “breach of contract also involves a fraud evincing a ‘high degree of moral turpitude’ and demonstrating ‘such wanton dishonesty as to imply a criminal indifference it civil obligations’” and the “conduct was part of a pattern of similar conduct directed at the public generally.”8

    1. JP Morgan Chase v. J.H. Elec. of NY, Inc., 893 N.Y.S.2d 237 (N.Y. App. Div. 2010). 

    2. New York City Health & Hosp. Corp. v. St. Barnabas Hosp., 782 N.Y.S.2d 12 (N.Y. App. Div. 2004); see also Johnson & Johnson v. Am. Nat’l Red Cross, 528 F. Supp. 2d 462, 463 (S.D.N.Y. 2008). 

    3. Wrangell v. C.F. Hathaway Co., 253 N.Y.S.2d 41, 43 (N.Y. App. Div. 1964). 

    4. Id. (citations omitted). 

    5. Kenford Co. v. County of Erie, 493 N.E.2d 234, 235 (N.Y. 1986).  

    6. Ashland Mgmt. Inc. v. Janien, 624 N.E.2d 1007, 1010 (N.Y. 1993).  

    7. Kenford, 493 N.E.2d at 235. 

    8. Rocanova v. Equitable Life Assurance Soc’y of United States, 634 N.E.2d 940, 943 (N.Y. 1994). 

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  2. Conspiracy

    1. Introduction

      If a sexual photo or video is published online, it may have been done by several people, rather than just one. Moreover, although one person does the actual posting of an image, several other individuals may be making comments or taking actions that intensify the situation. For instance, although one person posts an image, another co-conspirator may add sound. In such cases, a plaintiff could try to make out a claim of conspiracy along with its other allegations.

    2. Elements

      1) The corrupt agreement between two or more persons;

      2) An overt act;

      3) The intentional participation in the furtherance of a plan or purpose; and

      4) The resulting damages.1

    3. Cases

      Research is ongoing. My search of New York cases citing this statute did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      A WMC plaintiff could try to plead a claim of “conspiracy” where several individuals are involved in the unlawful publication of his or her private information/photographs without his or her consent.

    1. Pope v. Rice, No. 04-CIV-4171, 2005 WL 613085, at *13 (S.D.N.Y. Mar. 14, 2005); see also Goldstein v. Siegel, 244 N.Y.S.2d 378, 382 (N.Y. App. Div. 1964) (defining civil conspiracy as “common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives”). 

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  3. Conversion

    1. Introduction

      A WMC victim could sue to recover property or damages. For instance, if an individual publishes an online photograph of the victim without her consent, she could try to bring an action of conversion against him to reclaim the goods and/or obtain other equitable relief.

    2. Elements

      A denial or a violation of a person’s dominion over rights in or possession of property.1

    3. Cases

      1. Abrams v. Pecile, 922 N.Y.S.2d 16 (N.Y. App. Div. 2011)

        • Procedural Posture: On appeal from lower court’s ruling granting defendant’s motion to compel discovery in context of plaintiff’s claim that defendant retained without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon.

        • Law: Conversion; intentional infliction of emotional distress

        • Facts: Plaintiff sued defendant, a former employee of her husband, for retaining, without her permission, a copy of a CD containing seminude photographs of the plaintiff taken by her husband during their honeymoon. Plaintiff also alleged that defendant refused to return the CD/photographs unless plaintiff’s husband paid him $2.5 million to settle her sexual harassment claims brought against plaintiff’s husband and his brother.”2

        • Outcome: The court reversed the lower court’s decision and determined that defendant was not entitled to access to plaintiff’s social networking accounts or hard drive for discovery where he failed to provide evidence that had a “substantial need” for the materials and was unable to obtain them elsewhere without “undue hardship.”3

      2. Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116 (S.D.N.Y. 1991)

        • Procedural Posture: Defendant moved for summary judgment on plaintiff’s claims under N.Y. Civ. Rights Law §§ 50 & 51, common law conversion, and intentional infliction of emotional distress.

        • Law: Conversion; N.Y. Civ. Rights Law §§ 50 & 51; intentional infliction of emotional distress

        • Facts: Plaintiff contended that she appeared in a scene shown during the opening credits of a New York murder mystery, “Sea of Love,” in which a police officer investigating a case becomes romantically involved with a suspect who responded to an advertisement placed by the police in an effort to catch the killer.4 The defendants disputed whether the plaintiff was actually in the scene, but the court adopted plaintiff’s factual assertions for purposes of considering the summary judgment motion. The scene at issue was nine seconds long (though the woman’s face was visible for only four seconds), and showed a “scantily dressed” woman revealing her full face and entire body as she walked on a public New York City street.

        • Outcome: The court granted defendant’s motion for summary judgment on all claims. First, in rejecting plaintiff’s conversion claim, the court explained that the claim labeled “conversion,” was actually simply a claim for a violation of plaintiff’s right to privacy, which exists only under New York Civil Rights law.5 Second, the N.Y. Civil Rights Law claims were barred by the “incidental use” do[ctrine, which requires a “direct and substantial connection between the appearance of the plaintiff’s name or likeness and the main purpose and subject of the work.”6 The court specifically rejected plaintiff’s argument that the doctrine only applied to injunctive relief, and not to actions for money damages as well as injunctions.7 The court explained “[t]he doctrine of incidental use was developed to address concerns that penalizing every unauthorized use, no matter how insignificant or fleeting, of a person’s name or likeness would impose undue burdens on expressive activity, and carry consequences which were not intended by those who enacted the statute.”8 The court further reasoned that although "[t]he statute was passed to change New York law, which then provided no remedy to those whose pictures or names were used blatantly and commercially, as in advertisements. That is no this case.”9 Finally, the court also dismissed plaintiff’s intentional infliction of emotional distress claim because the conduct at issue was not “extreme and outrageous” such that it fell under the tort.10

    4. Practice Pointers

      A cause of action for conversion accrues when the conversion occurs, and the statute of limitations begins to run at that time. The fact that the victim may not know that she suffered an injury or that she may not have discovered the wrongs complained of until long after they were committed is immaterial.11

      New York law permits a claim for aiding and abetting conversion where the plaintiff can prove: (1) the existence of a violation committed by the primary (as opposed to the aiding and abetting) party; (2) “knowledge” of this violation on the part of the aider and abettor; and (3) “substantial assistance” by the aider and abettor in achievement of the violation.12 While “wrongful intent is not an essential element of the conversion, a plaintiff must show that the defendant aided and assisted the converter with culpable knowledge that such funds did not belong to [the converter].”13 “New York has not adopted a constructive knowledge standard for imposing aiding and abetting liability.”14

    1. Sporn v. MCA Records, Inc., 448 N.E.2d 1324, 1326 (N.Y. 1983). 

    2. Abrams v. Pecile, 922 N.Y.S.2d 16, 17 (N.Y. App. Div. 2011) 

    3. Id. 

    4. Preston v. Martin Bregman Prods, Inc., 765 F. Supp. 116, 118 (S.D.N.Y. 1991). 

    5. Id. at 120. 

    6. Id. at 119. 

    7. Id. 

    8. Id. at 120 (citations omitted). 

    9. Id. (citations omitted). 

    10. Id. at 120-21 (“If defendant’s primary purpose was to advance its own business interests, and any conduct that harmed plaintiff was incidental, defendant has not committed the New York tort of intentional infliction of emotional distress.”). 

    11. Brick v. Cohn-Hall-Marx Co., 11 N.E.2d 902 (N.Y. 1937). 

    12. Dangerfield v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 02-CIV-2561, 2006 WL 335357, at *5 (S.D.N.Y. Feb. 15, 2006) (internal citations omitted). 

    13. Id. (internal citations omitted). 

    14. Id. (internal citations omitted). 

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  4. Defamation

    1. Introduction

      If a sexual photo or video is published online, it may be accompanied by defamatory statements about the victim, likely through explicit material posted is accompanied by sound. However, it seems less likely that the statements would be oral than written statements (libel), e.g., comments accompanying the photo/video may state that the victim is infected with a sexually transmitted disease, is seeking sex in exchange for money, or has had abortions.

    2. Elements

      1) False statement;

      2) Published without privilege or authorization to a third party;

      3) Constituting fault as judged by, at a minimum, a negligence standard; and

      The statement must either cause special harm or constitute defamation per se.1

    3. Cases

      1. Stern v. News Corp., No. 08 Civ. 7624, 2010 WL 5158635 (S.D.N.Y. Oct. 14, 2010)

        • Procedural Posture: Motion for summary judgment by defendant on plaintiff’s claims of false light invasion of privacy, defamation per se, and tortious interference with business relations

        • Law: Defamation, tortious interference with business relations

        • Facts: Plaintiff Stern was a journalist for the New York Post who drafted the “Page Six” gossip column, which is owned by defendant, News Corporation through various subsidiaries. In the spring of 2006, an individual who Stern occasionally featured in “Page Six” alleged to federal authorities that Stern had asked him for money in exchange for favorable coverage in the gossip column. The U.S. Attorney’s Office for the S.D.N.Y. launched an investigation into Stern for alleged criminal extortion, and Stern was soon terminated from his position with the Post. He later entered a publishing agreement with Touchstone Fireside for a book, but soon after the deal was signed, the parties mutually agreed to end their relationship. In spring 2007, Stern sued for claims arising from the investigation and the news coverage that surrounded it. In this action, he brought defamation, false light, and tortious interference claims based on statements made by Post employees in articles published by other news outlets, as well as the Post itself. He brought suit more than a year after many of the allegedly defamatory statements, and Stern failed to respond to defendant’s motion for summary judgment, such that the court adopted defendant’s uncontested facts.

        • Outcome: The court granted summary judgment to defendant on all claims. Summary judgment was appropriate on the false light claim because there is no “false light” privacy claim under NY law.2 In regards to the defamation claim, the court found several of the alleged statements inactionable because the claims were time-barred under the one-year statute of limitations.3 Further, the court held that New Corporation was not the proper defendant to the action because it owned several subsidiaries in addition to the post, there were two intermediary corporations between News Corporation and the Post, and “a parent corporation cannot be held liable for a subsidiary’s tort, unless it is proven that the subsidiary is wholly dominated and controlled by the parent corporation such that piercing the corporate veil is justified.”4 Finally, the court dismissed the tortious interference claim because Stern “offered no evidence to establish the[] elements, beyond a claim that News Corporation knew of the relationship of Stern and Simon and Schuster. News Corporation, however, has put forward evidence tending to prove that the contract between Stern and his publisher was dissolved by mutual agreement and that News Corporation made no attempt to influence the relationship . . .”5

      2. Lunney v. Prodigy Servs. Co., 723 N.E.2d 539 (N.Y. 1999)

        • Procedural Posture: On appeal from reversal of denial of defendant ISP provider’s motion for summary judgment on plaintiff’s claims for defamation and negligence after an imposter who had opened accounts in the minor plaintiff’s name posted vulgar messages to electronic bulletin board and sent a threatening, profane email message.

        • Law: Defamation; negligence

        • Facts: Unknown imposter used minor plaintiff’s name to open a number of accounts with defendant Prodigy, an ISP provider, and posted vulgar messages, etc. in plaintiff’s name. Plaintiff sued defendant Prodigy for defamation and negligence arguing that Prodigy was liable for the unknown imposter’s actions.

        • Outcome: The court affirmed the grant of summary judgment to Prodigy because an ISP provider is not a “publisher” and thus, Prodigy was protected by qualified privilege and was not negligent in failing to prevent an imposter from opening an account in plaintiff’s name.

        • Special Notes: The court explained that the ISP provider should be accorded the common-law qualified privilege accorded to telephone and telegraph companies: “The public would not be well served by compelling an ISP to examine and screen millions of email communications, on pain of liability for defamation. Considering that in the case before us there is no basis upon which to defeat the qualified privilege, it should and does apply here.”6

    4. Practice Pointers

      In addition to being immune through a common law privilege, the Communications Decency Act also may provide an ISP with immunity. Section 230 of the Communications Decency Act of 1996, 47 U.S.C. § 230, is a landmark piece of Internet legislation, which provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.

      Section 230 is controversial because several courts have interpreted the Act as providing complete immunity for ISPs with regard to the torts committed by their users over their systems.7

      This rule effectively protects online entities, including user-generated content websites that qualify as a “provider or user” of an “interactive computer service.” Notably, some criticize Section 230 for leaving victims with no hope of relief where the true tortfeasors cannot be identified or are judgment proof. In Zeran v. Am. Online, Inc., for instance, the plaintiff was allegedly defamed by an unidentified user of AOL’s bulletin board and he received death threats requiring the FBI’s involvement.8 However, he could not sue the original poster because of missing records. Because Section 230 barred the plaintiff from obtaining damages from AOL directly, he received no redress for the harm the messages caused.9

      To be immune under the Act, a defendant must satisfy each of the following prongs: (1) the defendant must be a “provider or user” of an “interactive computer service”; (2) the cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue; and (3) the information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.

    1. Stern v. News Corp., No. 08 Civ. 7624, 2010 WL 5158635, at *4 (S.D.N.Y. Oct. 14, 2010) (citing Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (N.Y. App. Div. 1999)). 

    2. Id. 

    3. Id. 

    4. Id. 

    5. Id. at *7. 

    6. Lunney v. Prodigy Servs. Co., 723 N.E.2d 539 (N.Y. 1999). 

    7. See, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (holding that Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service”). 

    8. Id. 

    9. Id. 

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  5. Injurious Falsehood

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may bring a common law action for false light if he or she can argue that the material makes it seem that he or she is something he or she is not (for example: that he or she aspires to be a porn star or that he or she is an exhibitionist). He or she must suffer damages to her pecuniary interests. In New York, it is unlikely that a WMC victim would try to make a claim of injurious falsehood.

    2. Elements

      1) Publication of false and malicious statements;

      2) Reasonably calculated to cause harm, disparaging the title or property interests of another; and

      3) Resulting in special damages.1

    3. Cases

      Research is ongoing. My search of New York cases citing this statute did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Injurious falsehood in New York is also known as “trade libel,” “product disparagement,” and other various thereof, and it is separate and apart from defamation.2

    1. Joseph v. Siegel, 105 N.Y.S.2d 690 (N.Y. Sup. Ct. 1951), aff’d Joseph v. Lutzky, 106 N.E.2d 613 (N.Y. 1952). 

    2. Ruder & Finn Inc. v. Seaboard Sur. Co., 422 N.E.2d 518, 522 (N.Y. 1981) (“[A]lthough defamation and disparagement in the commercial context are allied in that the gravamen of both are falsehoods published to third parties, there is a distinction.”) 

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  6. Intentional Infliction of Emotional Distress (“IIED”)

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may sue under the common law tort of intentional infliction of emotional distress or outrage in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements

      1) Extreme and outrageous conduct;

      2) Intent to cause, or disregard of a substantial probability of causing severe emotional distress;

      3) A causal connection between the conduct and injury; and

      4) Severe emotional distress.1

    3. Cases

      1. Howell v. New York Post Co., Inc., 612 N.E.2d 699 (N.Y. 1993)

        • Procedural Posture: On appeal from grant of motion to dismiss plaintiff’s claims for invasion of privacy and intentional infliction of emotional distress

        • Law: Intentional infliction of emotional distress; NY Civil Rights Law §§ 50-51.

        • Facts: Plaintiff was a patient at psychiatric facility in upstate New York where Hedda Nussbaum was also a patient. Ms. Nussbaum was a public figure because her adopted daughter had recently been murdered by Nussbaum’s husband through child abuse, and the case had been highly publicized. A New York Post photographer entered the facility’s grounds and took photos of Nussbaum for an article regarding her recovery; in one photo, she was featured walking with plaintiff. The photos were published despite the hospital’s request that the paper not publish any patient photos. The trial court dismissed the privacy claim.

        • Outcome: The court affirmed the dismissal of plaintiff’s claims because the publication was qualifiedly privileged as newsworthy, and because the plaintiff was photographed outdoors from a distance, and under circumstances that met the newsworthiness exception.

        • Special Notes: The court noted that intentional infliction of emotional distress could be so broad that “the requirements of the rule are rigorous and difficult to satisfy. . . Indeed, of the intentional infliction of emotional distress claims considered by this Court, everyone has failed because the alleged conduct was not sufficiently outrageous.”2

      2. Esposito-Hilder v. SFX Broad. Inc., 654 N.Y.S.2d 259 (N.Y. Sup. Ct. 1996)

        • Procedural Posture: Defendant radio station moved to dismiss plaintiff’s complaint for intentional infliction of emotional distress arising from comments made in connection with the publication of her bridal photo without her consent.

        • Law: Intentional infliction of emotional distress

        • Facts: Plaintiff’s bridal photograph was published in the local paper. Shortly thereafter, defendants invited the listening audience members to vote amongst plaintiff and others in an “Ugliest Bride Contest.” Plaintiff alleges that she and her colleagues overheard the radio broadcast, and she brought a claim for intentional infliction of emotional distress.

        • Outcome: The court denied the motion to dismiss and found that plaintiff stated a cognizable claim for relief, and a jury would have to determine whether defendants’ speech and conduct actually exceeded the bounds of decency. Regardless, plaintiff “was demeaned and injured by the speech and conduct of defendants,” and the fact that her photograph was published in a local paper did not turn her from a private plaintiff to a public figure.3

        • Special Notes: Although the court would not find defendants’ conduct outrageous as a matter of law, it determined that she had put forth the other elements of an intentional infliction of emotional distress claim.

      3. Otero v. Houston St. Owners Corp., No. 104819/2010, 2012 WL 692037 (N.Y. Sup. Ct. Feb. 28, 2012)

        • Procedural Posture: Plaintiffs sued defendants to recover damages for invasion of privacy from defendants’ installation of cameras in hallway of an apartment building where plaintiffs were tenants. Defendants moved to dismiss plaintiffs’ claims.

        • Law: N.Y. Civ. Rights Law §§ 50-51; intentional infliction of emotional distress; prima facie tort

        • Facts: Plaintiffs lived in an apartment complex managed by defendants. Defendants installed cameras in the hallways of the building. The cameras only recorded what went on in plaintiffs’ apartment when their door was open, not when plaintiffs’ door was closed. Plaintiffs alleged that defendants installed the camera “to humiliate them to the point of vacating their rent stabilized apartment.”4

        • Outcome: The court dismissed plaintiffs’ claim for intentional infliction of emotional distress because plaintiffs’ “allegations that defendants’ camera allowed views into their apartment falls short of extreme and outrageous behavior. Even if the camera’s location were considered a trespass into plaintiff’s apartment, it would not constitute atrocious, indecent, or utterly despicable conduct meeting the requirements for an intentional emotional distress claim.”5 The court did not dismiss plaintiffs’ prima facie tort claim on plaintiffs’ motion to dismiss for failure to state a claim on which relief could be granted, but it did dismiss the claim for lack of personal jurisdiction. The court explained that although plaintiffs’ allegations that defendants “placed the camera to force plaintiffs and the other rent regulated tenants to leave in itself demonstrate[d] a purpose beyond the disinterested malevolence required to sustain plaintiff’s prima facie tort claim,” plaintiffs submitted an affidavit showing that the surveillance eventually forced them to leave the apartment and caused them marital woes and expenses for mental health services, which cured the otherwise deficient claim.6 The court also dismissed plaintiffs’ statutory privacy claim, because plaintiffs alleged nothing supporting an advertising or trade purpose.7

        • Special Notes: The court noted that the result would have differed had the camera been inside plaintiffs’ apartment rather than in the hallway: “While plaintiffs’ expectations of privacy in their apartment behind the closed door is reasonable, an expectation of privacy in the hallway is not reasonable because it is accessible to other persons. Plaintiffs admit that the camera recorded what occurred inside the apartment only when its entrance door was open, yet contend that the camera somehow intruded no their intimate activities. Plaintiffs do not deny that it would have done so only when their entrance door was open.”8

      4. Smigo v. NYP Holdings, Inc., No. 108756/08, 2008 WL 4918667 (N.Y. Sup. Ct. Nov. 12, 2008)

        • Procedural Posture: Defendant newspaper moved to dismiss plaintiff’s claim for intentional infliction of emotional distress arising from publication of allegedly defamatory article.

        • Law: Intentional infliction of emotional distress; N.Y. Civ. Rights Law §§ 50-51; negligent supervision

        • Facts: Newspaper published an article stating that a sex tape existed between popular radio personality’s fiancée and a male music television personality. The TV personality and the fiancée both denied the video’s existence. The newspaper later published a retraction reporting that the informant, a disgruntled ex-employee, had provided the newspaper with incorrect information, and that there was no sex tape.

        • Outcome: The court granted the motion to dismiss the claim of intentional infliction of emotional distress. First, the article’s publication did not rise to the level of “extreme and outrageous” conduct where “publication of a single, purportedly false or defamatory article regarding a person does not constitute extreme and outrageous conduct as a matter of law.”9 Second the plaintiff had no separate cause of action for emotional distress where the conduct complained of fell within the scope of the facts alleged in her libel claim.10 Also, the plaintiff failed to make out a claim under N.Y. Civ. Rights Law §§ 50-51 because the law does not apply to “reports of newsworthy events or matters of public interest.”11 (citing Gruner + Jahr Printing, 727 N.E.2d at 549) (noting that the exception “has been ‘broadly construed’ and encompasses ‘not only descriptions of actual events, but also articles concerning political happenings’”).

        • Special Notes: Where an article is considered “newsworthy,” and the report is “on a matter of interest to the public,” e.g. because the subject is a public figure, there will be no cause of action under N.Y. Civ. Rights Law §§ 50-51.

    4. Practice Pointers

      New York courts have adopted the rule set out in the Restatement (Second) of Torts § 46(1), holding “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.”12

      The courts have noted that the first element—“extreme and outrageous conduct”—“is by far the most elusive” and must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”13

    1. Smigo v. NYP Holdings, Inc., No. 108756/08, 2008 WL 4918667, at *2 (N.Y. Sup. Ct. Nov. 12, 2008) (citing Howell v. New York Post Co., 612 N.E.2d 699, 701 (N.Y. 1993)); see also Otero v. Houston St. Owners Group, No. 104819/2010, 2012 WL 692037, at *3 (N.Y. Sup. Ct. Feb. 28, 2012). 

    2. Howell, 612 N.E.2d at 702-03 (adding that “[l]iability [for intentional infliction of emotional distress] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”). 

    3. Esposito-Hilder v. SFX Broad. Inc., 654 N.Y.S.2d 259 (N.Y. Sup. Ct. 1996). 

    4. Otero, 2012 WL 692037 at *4. 

    5. Id. 

    6. Id. at *5. 

    7. Id. at *6. 

    8. Id. at *4. 

    9. Smigo v. NYP Holdings, No. 108756/08, 2008 WL 4918667, at *3 (N.Y. Sup. Ct. Nov. 12, 2008) (citing Bement v. NYP Holdings, Inc., 760 N.Y.S.2d 133, 137 (N.Y. Sup. Ct. 2003)). 

    10. Id. (citing Manno v. Hembrooke, 501 N.Y.S.2d 933, 936 (N.Y. Sup. Ct. 1986)). 

    11. Id. 

    12. Fischer v. Maloney, 373 N.E.2d 1215 (N.Y. 1978). 

    13. Smigo, 2008 WL 4918667 at *3 (citing Seltzer v. Bayer, 709 N.Y.S.2d 21, 23 (N.Y. App. Div. 2000) (quoting Fischer, 373 N.E.2d at 1217)). 

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  7. Invasion of Privacy (General)

    1. Introduction

      New York does not recognize common law claims for invasion of privacy; these claims include claims for false light, publication of private facts, misappropriation/right of publicity, and intrusion.1 Accordingly, these claims are governed by sections 50-51 of New York Civil Rights Law, which prohibit the use of name or likeness of a living person for purposes of trade or advertising without that person’s consent.2

    2. Elements

      Not applicable. As noted above, New York does not recognize a common law invasion of privacy claim.

    3. Cases

      1. Messenger v. Gruner + Jahr Printing & Publ’g, 727 N.E.2d 549 (N.Y. 2000)

        • Procedural Posture: On certification from the Second Circuit regarding the following issue: “May a plaintiff recover under N.Y. Civ. Rights Law §§ 50-51 where the defendant used the plaintiff’s likeness in a substantially fictionalized way without the plaintiff’s consent, even if the defendant’s use of the image was in conjunction with a newsworthy column?”3

        • Law: N.Y. Civ. Rights Law §§ 50-51

        • Facts: Plaintiff posed for photos for Young and Modern (“YM”) magazine without obtaining her parents’ consent when she was only fourteen years old. The magazine published a column in a letter-to-the-editor in which the speaker, a fourteen-year-old girl, asked for advice about what to do after she had accidentally gotten drunk and had sex with her eighteen-year-old boyfriend and two of his friends. The photographs of plaintiff juxtaposed the column and appeared to illustrate it. Plaintiff sued for relief, alleging that the juxtaposition implied that plaintiff had authored the letter.

        • Outcome: The court answered the certified question in the negative and determined that plaintiff could not bring her claim. The court explained that by extending a “fictionalization” exception to the newsworthiness exception to a newsworthy article to a situation like that at issue here, “liability under Civil Rights Law § 51 becomes indistinguishable from the common-law tort of false light invasion of privacy.”

        • Practice Pointers: In situations where a putative plaintiff might bring a common law claim for the tort of invasion of privacy (in any of its various derivations, e.g. intrusion, publication of private facts, etc.), he or she should proceed under Section 50 and 51 of the New York Civil Rights Act rather than under the common law.4

      2. Garis v. Uncut-RawTV, Inc., No. CV06-503, 2011 WL 4404035 (E.D.N.Y. July 5, 2011)

        • Procedural Posture: Following district court’s entry of a default judgment for plaintiff, district court referred case to magistrate judge for an inquest to determine and recommend what damages, if any, were appropriate (including attorneys’ fees).

        • Law: N.Y. Civ. Rights Law §§ 50-51

        • Facts: Plaintiff Garis had a sexual encounter with defendant Sullivan, and he taped the encounter without her permission. He later, copied, distributed and sold the videotape without her consent, causing her severe emotional distress. The default judgment was entered against defendants where they failed to answer or otherwise move against plaintiff’s complaint. Plaintiff sought $1 M in damages, injunctive relief, and attorneys’ fees.

        • Outcome: The court granted plaintiff $50,000 in damages and no attorneys’ fees. Although plaintiff established that defendants’ actions had caused her emotional distress, the court found $1 M excessive because, “[t]he materials submitted by plaintiff do not indicate that plaintiff’s depression was severe. Furthermore, there were other contributing factors to plaintiff’s mental state [e.g., the death of her cousin]. Finally, because plaintiff sought treatment at a free clinic, there are no out-of-pocket expenses to be recovered as a result of her emotional distress.”5 The court granted an injunction because plaintiff “met her burden to establish success on the merits of her claim as is required for injunctive relief” and would be irreparably harmed by the continued distribution of her image.6 The court denied attorneys’ fees only because plaintiff had failed to present any facts or data to back up her request (e.g. no time sheets, etc.).

    4. Practice Pointers

      The New York statute is designed to enforce the right to be left alone. However, there are exemptions that reflect concern for “free dissemination of news and other matters of interest to the public,” and for “incidental uses” of a plaintiff’s image.7

      The New York courts broadly construe the “newsworthiness” exception, and “[t]he exception applies not only to reports of political happenings and social trends . . . and to news stories and articles of consumer interest such as developments in the fashion world . . . but to matters of scientific and biological interest such as enhanced fertility and in vitro fertilization as well. Moreover, questions of ‘newsworthiness’ are better left to reasonable editorial judgment and discretion; judicial intervention should occur only in those instances where there is ‘no real relationship’ between a photograph and an article or where the article is an ‘advertisement in disguise.’”8

      Although “[l]egitimate countervailing social needs may warrant some intrusion despite an individual’s reasonable expectation of privacy and freedom from harassment. . . the interference allowed may be no greater than that necessary to protect the overriding public interest.”9

      The statute of limitations for violations of N.Y. Civil Rights Law §§ 50 & 51 is one year, and it begins to run on the first day of publication, and is not renewed for subsequent republications.10 However, “[t]he single publication rule does not apply where an item is published initially, but is then republished, not merely as a belated release of the original publication, but as a republication.”11 Courts considering whether a republication has occurred look at whether the item at issue has been “modified and revised” and also consider the type of merchandise on which the plaintiff’s image is used, etc.12 In Zoll, the court determined as a matter of law that the re-airing of a 1978 commercial featuring plaintiff as a 2000 re-release was not a republication where the commercial appeared in its original form.13

      New York courts refuse to recognize “efforts to present statutory privacy claims as common law claims where the claim is based on alleged unauthorized use of a plaintiff’s image or likeness and have refused to exalt form over substance when a plaintiff attempts to do so. . . A number of cases have squarely held that common law unjust enrichment claims for unauthorized use of an image or likeness are subsumed by the Civil Rights Law. . . It seems clear that common law trespass claims are likewise subsumed by the Civil Rights Law . . . [since] New York does not recognize a common law property right in one’s image or likeness.”14

    1. See, e.g. Gruner + Jahr Printing, 727 N.E.2d at 551 (“New York does not recognize a common law right of privacy.”). 

    2. “Notwithstanding earlier federal authorities finding a common law right of publicity in New York, see, e.g., Haelen Lab., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.), cert. denied 346 U.S. 816 (1953), federal courts in New York have followed the clear holdings to the contrary by the New York Court of Appeals. Hurwitz, 884 F.2d at 684, cert. denied 493 U.S. (1990).” Media Law Resource Center, 50-state survey: Media Privacy and Related Law 2009-10, at 1177 (“Survey of New York Privacy and Related Claims Against the Media”) (2009). See supra Section A.2. 

    3. Gruner + Jahr Printing, 727 N.E.2d at 549. 

    4. See supra Section A.2. 

    5. Garis v. Uncut-RawTV, Inc., No. CV-06-5031, 2011 WL 4404035, at *4 (E.D.N.Y. July 5, 2011). 

    6. Id. at *3. 

    7. Beverley, 532 N.Y.S.2d at 404 (noting that the newsworthiness exemption “reflects Federal and State constitutional concerns for free dissemination of news and other matters of interest to the public”) (citation omitted). In Beverley, the court found that the calendar depicting plaintiff without her consent was an unauthorized use of plaintiff’s picture because the calendar was mainly an “advertisement for [defendant abortion facility]” even though it served an “educational” or “informative purpose.” Id. 

    8. Finger v. Omni Publ’n Int’l, Ltd., 566 N.E.2d 141, 144 (N.Y. 1990) (dismissing civil rights claim of family depicted in magazine photograph accompanying feature article on a recent study finding that caffeine may increase fertility). 

    9. Galella v. Onassis, 487 F.2d 986, 995 (2d Cir. 1973) (finding that photographer’s actions in attempting to capture photographs of Jacqueline Onassis and the Kennedy children were “obtrusive and intruding” and “far beyond the reasonable bounds of news gathering,” such that they were not protected by the First Amendment). 

    10. See Zoll v. Jordache Enter., No. 01 Civ. 1339 (CSH), 2002 WL 31873461, at *7 (S.D.N.Y. Dec. 24, 2002) (explaining the “single publication rule” under New York law).  

    11. Id. at *8. 

    12. Id. at *10. 

    13. Id. at *11. 

    14. Id. at *16 (noting that a person’s property right in his or her likeness or image “exists only pursuant to the statutory scheme created by the Civil Rights Law,” and without a common law property right to one’s image or likeness, no common law trespass claim can lie). 

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  8. Negligent Infliction of Emotional Distress (“NIED”)

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos may sue under the common law tort of negligent infliction of emotional distress in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements

      1) Defendant owed plaintiff a duty;

      2) Duty was breached; and

      3) Emotional harm resulted.1

    3. Cases

      1. Dana v. Oak Park Marina, Inc., 660 N.Y.S.2d 906 (N.Y. App. Div. 1997)

        • Procedural Posture: On appeal from decision granting in part and denying in part defendants’ pre-answer motion to dismiss in action against marina’s owners and operators arising from plaintiff’s claims that she had suffered emotional distress due to the marina’s videotaping of restrooms.

        • Law: Intentional and negligent infliction of emotional distress; N.Y. Civ. Rights Law § 51

        • Facts: Individual defendants were the operators and officers of a marina. The marina had an office area where employees could change, as well as restrooms for marina patrons and their guests, which included changing rooms, shower facilities and toilets. The defendants installed a video surveillance camera in the rest rooms (to detect vandalism), and subsequently installed two surveillance camera in the office area (to curb theft). Plaintiff alleged that: (1) defendants videotaped about 150-200 female patrons in various stages of undress without their knowledge or consent; (2) the videos were viewed by defendants and other third parties; and (3) the videotapes were “displayed for the purposes of trade.” Plaintiffs alleged that defendants’ actions caused her severe mental and emotional distress because defendants failed to ensure the privacy of patrons and guests using the ladies’ room, as well as other related claims.

        • Outcome: The court affirmed the lower court’s decision granting in part and denying in part the motion to dismiss. First, the court determined that plaintiff adequately pleaded a claim for negligent infliction of emotional distress because defendants owed a statutory duty to refrain from installing a videotape camera in the ladies’ rest room at the marina—Section 395-b(2) of N.Y. General Business Law prohibits the installation of cameras in “any fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn” for the purpose of surreptitiously observing the interior of those facilities.”2 The court explained that because the statute was intended to protect individuals who are surreptitiously viewed while lawfully at the foregoing facilities, plaintiff successfully alleged a claim for negligent infliction of emotional distress. Moreover, the court explained that defendant’s “reckless conduct” was also “encompassed within the tort denominated intentional infliction of emotional distress,” and affirmed the denial of defendant’s motion to dismiss that claim as well.3 The court also affirmed the dismissal of plaintiff’s claims under the statutory privacy law and breach of contract. The statutory claim was not barred by the statute of limitations because defendants failed to establish that the videotapes were displayed to third persons more than a year before the commencement of the action.4 Finally, the court affirmed the grant of dismissal on the breach of contract claim because a contract does not create a duty upon which to base liability.5

        • Special Notes: The court also rejected defendants’ arguments that the emotional distress actions were barred by the statute of limitations because plaintiff did not discover that the videos had been taken and/or viewed until within the one-year time limit.6

      2. Commercial Union Assurance Co., PLC v. Oak Park Marina, Inc., 198 F.3d 55 (2d Cir. 1999)

        • Procedural Posture: Insurer sought declaratory judgment that they had no duty to defend suits arising out of the insureds’ videotaping of female patrons and employees in restrooms and changing rooms.7

        • Law: Intentional and negligent infliction of emotional distress; N.Y. Civ. Rights Law § 51; insurance coverage law

        • Facts: Insurer sought declaratory judgment that it had no duty to defend suits arising out of the alleged voyeurism in Dana v. Oak Park Marina, Inc.8 The insured argued that the insurer had a duty to defend under the “Bodily Injury Endorsement” and the “Personal Injury Endorsement.” The Bodily Injury Endorsement provides coverage for “any and all claims for which [the Assured] may be held liable for damages arising out of accidents occurring during the ‘term’ of the Policy,” where an “accident” is “unusual and unforeseen.”9 The Personal Injury Endorsement provides coverage for damages due to ‘personal injury . . . arising out of, a publication in violation of an individual’s right to privacy” where the violation is “committed during the policy period.”10

        • Outcome: Because the insureds’ action of concealing video cameras and intentionally exhibiting the footage in a local bar could not be considered “accidental,” it was not covered by the Bodily Injury Endorsement. Regardless, the actions did not occur within the time of the policy’s coverage because the victims discovered their injuries after the policy had already lapsed. The Personal Injury Endorsement did not apply because the policy also included a “Dishonesty Exclusion,” to bar coverage for “loss due to . . . any act of dishonest character.”11 Given that the insured’s actions constituted an “underhanded scheme,” to invade their patrons’ privacy, the Dishonesty Exclusion abrogated any coverage arising from the Personal Injury Endorsement as a matter of law.12

    4. Practice Pointers

      The key inquiry in these types of cases will center on whether the defendant breached a duty to the plaintiff.

    1. Oscar Prods., Inc. v. Zacharius, 893 F. Supp. 250, 259 (S.D.N.Y. 1995). 

    2. Dana v. Oak Park Marina, Inc., 660 N.Y.S.2d 906, 909 (N.Y. App. Div. 1997). 

    3. Id. at 910. 

    4. Id. at 911. 

    5. Id. at 911-12. 

    6. Id. 

    7. See Dana v. Oak Park Marina, Inc., 660 N.Y.S.2d 906 (N.Y. App. Div.) (summary supra at Section B.9.2)). 

    8. Id. 

    9. Commercial Union Assurance Co. v. Oak Park Marina, Inc., 198 F.3d 55, 59-60 (2d Cir. 1999). 

    10. Id. at 60-61. 

    11. Id. at 60. 

    12. Id. at 60-61. 

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  9. Negligent Media Publication

    1. Introduction

      If a sexual photo or video is published online, it may be accompanied by defamatory statements about the victim, likely through explicit material posted is accompanied by sound. However, it seems less likely that the statements would be oral than written statements (libel), e.g., comments accompanying the photo/video may state that the victim is infected with a sexually transmitted disease, is seeking sex in exchange for money, or has had abortions.

    2. Elements

      1) Duty where individual giving information to the other owes a duty of care;

      2) Breach;

      3) Causation;

      4) Damages.1

    3. Cases

      1. Lunney v. Prodigy Servs. Co., 723 N.E.2d 539 (N.Y. 1999)

        • Procedural Posture: On appeal from reversal of denial of defendant ISP provider’s motion for summary judgment on plaintiff’s claims for defamation and negligence after an imposter who had opened accounts in the minor plaintiff’s name posted vulgar messages to electronic bulletin board and sent a threatening, profane email message.

        • Law: Defamation; negligence

        • Facts: Unknown imposter used minor plaintiff’s name to open a number of accounts with defendant Prodigy, an ISP provider, and posted vulgar messages, and other inappropriate content in plaintiff’s name. Plaintiff sued defendant Prodigy for defamation and negligence, arguing that Prodigy was liable for the unknown imposter’s actions.

        • Outcome: The court affirmed the grant of summary judgment to defendant Prodigy because an ISP provider is not a “publisher” and is therefore protected by qualified privilege. The court also found that the ISP was not negligent in failing to prevent an imposter from opening an account in plaintiff’s name.

        • Special Notes: The court explained that the ISP provider should be accorded the common-law qualified privilege accorded to telephone and telegraph companies: “The public would not be well served by compelling an ISP to examine and screen millions of email communications, on pain of liability for defamation. Considering that in the case before us there is no basis upon which to defeat the qualified privilege, it should and does apply here.”2

    4. Practice Pointers

      This will be limited to a situation in which the defendant owes a duty to the plaintiff. Thus, it may not be a common claim for WMC victims.

    1. Daniel v. Dow Jones & Co., Inc., 520 N.Y.S.2d 334, 336 (N.Y. Civ. Ct. 1987). 

    2. Lunney v. Prodigy Servs. Co., 723 N.E.2d 539 (N.Y. 1999). 

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  10. Prima Facie Tort

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos may bring a prima facie tort claim where the material’s intentional and malicious publication caused the victim to special damages, and no other tort claims apply.

    2. Elements

      1) Intentional infliction of harm;

      2) Which results in special damages;

      3) Without any excuse or justification;

      4) By an act or series of acts which would otherwise be lawful.1

    3. Cases

      1. D’Andrea v. Rafla-Demetrious, 3 F. Supp. 2d 239 (E.D.N.Y. 1996)

        • Procedural Posture: Summary judgment claim of hospital and program director asserting that they were not liable for plaintiff’s claims that followed a dispute with his residency program director and his eventual withdrawal from his residency program

        • Law: N.Y. Civil Rights Law §§ 50-51; tortious interference with contract; tortious interference with prospective economic advantage; prima facie tort

        • Facts: Plaintiff, a radiology resident, sued the hospital and his residency program director, defendant Rafla, alleging various contract and tort-based claims. During plaintiff’s time as a resident, he was improperly moonlighting at another hospital, and his performance was sub-par; he was also chronically absent. At the close of his program, the program director called and drafted a letter to the American Board of Radiology noting concerns about plaintiff’s preparedness for the examination, etc. Plaintiff later brought these claims. He asserted that the director had interfered with his contract with the ABR by making it more time-consuming and expensive to perform, and that Rafla’s letter and phone call supported a claim of prima facie tort. Finally, his photograph had been taken for a brochure for the residency program while he was a resident, and it was published in two separate publications years after his residency, only one of which was published and disseminated within the required statute of limitations for an invasion of privacy claim under N.Y. Civil Rights Law §§ 50-51. He brought a N.Y. Civil Rights Law §§ 50-51 claim based on that publication/dissemination.

        • Outcome: The court granted in part and denied in part defendants’ motion for summary judgment. The court granted summary judgment on the tortious interference and breach of contract claims because the hospital was not liable for a breach of contract and did not tortiously interfere with the contract. The court also granted summary judgment on the prima facie tort claim because plaintiff failed to state viable claim for relief. However, the court noted that the plaintiff could proceed on his invasion of privacy claim as to the second recruiting brochure disseminated to the public. The court dismissed the prima facie tort claim because defendants did not act with malice. The court explained that “[l]ike an action for tortious interference with prospective economic advantage, an action for prima face tort does not lie absent an allegation that the acts complained of were motivated solely by malice or to inflict injury.”2 The court also noted that the prima facie tort claim “cannot rest on the same substantive acts on which a breach of contract or intentional tort claim rests.”3

        • Special Notes: This case has a companion case (also cited within the document), which deal with the specific allegations of tortious interference and invasion of privacy.4

    4. Practice Pointers

      “Prima facie tort provides a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy.”5

    1. Freihofer v. Hearst Corp., 480 N.E.2d 349 (N.Y. 1985). 

    2. D’Andrea, 3 F. Supp. 2d 239, 252 (E.D.N.Y. 1996) (citing Entm’t Partners Group, Inc. v. Davis, 603 N.Y.S.2d 439 (N.Y. App. Div. 1993)). 

    3. Id. (citing Gertler v. Goodgold, 487 N.Y.S.2d 565 (N.Y. App. Div. 1985) (dismissing prima facie tort claim where it rested on same factual allegations set forth for breach of contract, tortious interference with contract, and tortious interference with prospective economic advantage claims)). 

    4. See D’Andrea v. Rafla-Demetrious, 972 F. Supp. 154 (E.D.N.Y. 1997) (dismissing plaintiff former resident’s invasion of privacy claim against hospital because the use of his photograph in the brochure was incidental to the main purposes behind the brochure); see supra at 9. 

    5. D’Andrea, 3 F. Supp. 2d at 252 (citing Curiano v. Suozzi, 469 N.E.2d 1324 (N.Y. 1984)). 

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  11. Tortious Interference with Contract/Prospective Economic Advantage

    1. Introduction

      A WMC victim could try to use this tort to argue that a defendant’s actions interfering in a contract with a third party caused it to sacrifice a business relationship/economic relationship with another.

    2. Elements

      1) Existence of a valid contract between the plaintiff and a third party;

      2) The defendant’s knowledge of the contract;

      3) The defendant’s intentional procurement of the third-party’s breach of the contract without justification;

      4) Actual breach of contract; and

      5) Damages resulting therefrom.1

    3. Cases

      1. Nader v. Gen. Motors Corp., 298 N.Y.S.2d 137 (N.Y. App. Div. 1969)

        • Procedural Posture: On appeal from dismissal of plaintiff’s claims for invasion of privacy, intentional infliction of emotional distress, and tortious interference arising from alleged actions of defendant General Motors Corp.

        • Law: Invasion of privacy; tortious interference with prospective economic advantages; intentional infliction of emotional distress

        • Facts: Plaintiff, author and lecturer on auto safety, sued GM and others for allegedly shadowing him and harassing him after he published a book regarding car safety. Plaintiff also argued that defendants’ actions caused plaintiff to lose potential income on his book, etc.

        • Outcome: The court affirmed the dismissal of plaintiff’s claims. Because the case was not a “publication case,” plaintiff could not maintain a private cause of action against defendants for invasion of privacy.

        • Special Notes: The court dismissed plaintiff’s cause of action seeking recovery for lost business opportunity because plaintiff did not specifically articulate his lost sales of writings or potential sales lost, and the bill of particulars did not supply the information to remedy the deficiencies.2

      2. D’Andrea v. Rafla-Demetrious, 146 F.3d 63 (2d Cir. 1998)

        • Procedural Posture: Appeal by plaintiff of summary judgment grant to defendants on claim of invasion of privacy arising from parties’ dispute following plaintiff’s medical residency.

        • Law: Tortious interference with contract

        • Facts: Plaintiff, a medical resident, asserted that defendants had tortiously interfered with his contract with hospital where the hospital issued him a certificate that did not state that he had “satisfactorily performed” the duties of his position. He claimed that he had another contract with ABR, and that Rafla’s letter about his subpar performance interfered with that contract. However, he subsequently obtained alternative employment, and the hospital was never a party to the contract.

        • Outcome: The court affirmed summary judgment for the defendants because plaintiff did not show that defendant actually interfered with performance of the plaintiff’s contract. The court rejected D’Andrea’s suggestion that the court adopt Restatement (Second) of Torts § 766A, under which “where the defendant interferes with performance by the plaintiff, the plaintiff need not demonstrate ‘actual breach’ and will adequately state a claim by showing that the defendant made performance by the plaintiff ‘more time-consuming and expensive.’”3

    4. Practice Pointers

      In New York, tortious interference with contract requires an actual breach of the contract in question.4

    1. Kirch v. Liberty Media Corp., 449 F.3d 388, 401-02 (2d Cir. 2006). 

    2. Nader v. Gen. Motors Corp., 298 N.Y.S.2d 137, 146 (N.Y. App. Div. 1969). 

    3. D’Andrea v. Rafla-Demetrious, 146 F.3d 63, 66 (2d Cir. 1998). 

    4. Id. (noting that New York courts require a breach of contract for a tortious interference claim and declining “to hold that the New York courts would recognize an exception to the rule requiring ‘actual breach’ in order to state a claim for tortious interference with contractual relations”). 

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  12. Trespass

    1. Introduction

      Although New York does not recognize a common law intrusion claim, it does observe a cause of action for trespass, which could be used in similar circumstances.

    2. Elements

      1) Specific intent to enter another’s land or engage in an act where it is substantially certain that entry onto the land will result.

      2) Entry upon land in possession of another1

    3. Cases

      1. Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973)

        • Procedural Posture: Appeal by “paparazzo” photographer seeking to overturn lower court’s order of injunctive relief to Jacqueline Onassis and her family.

        • Law: Trespass

        • Facts: In the early 1970s, free-lance photographer, Ronald Galella, made a career of selling photos of well-known people, including Jackie Onassis and her two children. In an effort to get a good photograph, Galella regularly endangered the family: interrupting Caroline Kennedy at tennis, jumping in John’s path as he rode his bike home from school; and coming too close to Onassis in a power boat while she swam. The Secret Service arrested Galella, and he sued for false arrest. Onassis counterclaimed, charging Galella with invasion of privacy, assault and battery, harassment, and emotional distress. The district court granted Onassis an injunction from “harassing, alarming, startling, tormenting, or touching” the family, blocking their movements, invading their “zone of privacy” and from “performing any act reasonably calculated to place (their) lives and safety . . . in jeopardy.”2

        • Outcome: The court affirmed the grant of injunctive relief, but modified the order to forbid Galella from going within 25 feet of Onassis or 30 feet of her children, and specifically listing several forbidden activities; the injunction applied even when the family was in public.3 Although Onassis was a public figure, Galella’s action went far beyond the reasonable bounds of newsgathering, especially given that there were minor children involved.4

      2. LeMistral, Inc. v. Columbia Broad. Sys., 402 N.Y.S.2d 815 (N.Y. App. Div. 1978)

        • Procedural Posture: On appeal from trial court decision awarding damages to plaintiff restaurant for trespass of defendant CBS camera crew

        • Law: Trespass

        • Facts: Defendant CBS camera crew entered a restaurant to report on its status as a health code violator. CBS had instructed the crew to barge in unannounced, and to catch the restaurant’s occupants by surprise and “with cameras rolling.”5 The restaurant sued defendant for trespass, and a jury awarded compensatory damages.

        • Outcome: The court upheld the award for compensatory damages, but remanded for retrial of the punitive damages issue to allow defendant to explain “its motive, and the curtailment of this right by the trial court.”6

        • Special Notes: The court noted that “[t]he First Amendment is not a license to trespass.”7

      3. Shiffman v. Empire Blue Cross, 681 N.Y.S.2d 511 (N.Y. App. Div. 1998)

        • Procedural Posture:

        • Law: Trespass

        • Facts: Defendants gained entry to plaintiff’s private medical office by having a reporter pose as a potential patient using a false identity and a bogus insurance card. The lower court denied defendants’ cross motion to dismiss for failure to state a claim based on failure to allege damages. The lower court also determined that defendants’ affirmative defenses based on consent/implied consent to enter the premises were legally insufficient since consent obtained through misrepresentation or fraud is invalid.

        • Outcome: The court affirmed the lower court’s decision and determined that the lower court had correctly found the defendants’ affirmative defenses improper because the “consent” had been obtained by fraud. The court also determined that plaintiff did not have to plead any special damages from defendants’ trespass—“nominal damage is always presumed from a trespass.”8

        • Special Notes: The court also noted that punitive damages were not recoverable “inasmuch as there is no evidence the complained of-trespass was motivated by malice.”9

    4. Practice Pointers

      A victim may recover actual damages including “those resulting from each and every consequence of the trespass.”10

      Where invasion is de minimis, an award of nominal damages may be appropriate.11

      Damages recoverable by the injured party include those resulting from each and every consequence of the trespass, inclusive of both damage to the property and injury to the person, but only to the extent that such damages arose as a direct result of the wrongful intrusion by the trespassor-tortfeasor.12

      Importantly, New York does not recognize a cause of action for trespass or conversion of a plaintiff’s image or likeness.13

    1. Phillips v. Sun Oil Co., 121 N.E.2d 249 (N.Y. 1954). 

    2. Galella v. Onassis, 487 F.2d 986, 992 (2d Cir. 1973). 

    3. Id. at 998. 

    4. Id. 

    5. Le Mistral, Inc. v. Columbia Broad. Sys., 402 N.Y.S.2d 815, 816 n.1 (N.Y. App. Div. 1978). 

    6. Id. 818. 

    7. Id. at 817. 

    8. Shiffman v. Empire Blue Cross & Blue Shield, 681 N.Y.S.2d 511 (N.Y. App. Div. 1998). 

    9. Id. at 512. 

    10. Wells Fargo v. Tyson, 897 N.Y.S.2d 610, 616 (N.Y. Sup. Ct. 2010). 

    11. Id. 

    12. Id. (citations omitted). 

    13. Zoll v. Jordache Enter., Inc., No. 01 Civ. 1339(CSH), 2002 WL 31873461, at *16 (S.D.N.Y. Dec. 24, 2002) (“The property right exists only pursuant to the statutory scheme created by the Civil Rights Law. Thus, plaintiff has failed to establish an essential element of a trespass claim, namely, a common law property right in her image or likeness.”). 

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  13. Trespass to Chattels

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may bring an action against the person who published the material if the perpetrator obtained the images through a trespass to chattels and harmed the plaintiff.

    2. Elements

      1) Intentional and unjustified;

      2) Physical interference with the use and enjoyment of plaintiff’s personal property in plaintiff’s possession;

      3) Causing harm to plaintiff.

    3. Cases

      1. Davidoff v. Davidoff, No. 101728/06, 2006 WL 1479558 (N.Y. Sup. Ct. May 10, 2006)

        • Procedural Posture: Defendants alleged that the court had no personal jurisdiction over them and argued that they were not properly served.

        • Law: Trespass to chattels; intentional infliction of emotional distress, destruction of personal property; computer trespass; computer tampering; defamation; tortious interference with business

        • Facts: Plaintiff created and owns the contents of www.JonathanDavidoff.com and from his home in New York, he places personal and professional information on the site, such as photographs of himself and his family, his resume, and other professional achievements. He posts his content from his New York computer. He advertised his website and instructed people to review it—including certain business contacts. Plaintiff alleged that the defendants, his uncle and aunt (both Florida residents), without his permission or authority, entered the site from their Florida home computer, deleted all the files on the website, and placed their own picture of the plaintiff on the site, with phrases like “Pig of the Year,” and “I’m going to eat everything in site [sic].” Plaintiff then brought his action for various claims for relief against his aunt and uncle. Defendants moved to dismiss, arguing that the court had no subject matter jurisdiction over them because they lived in Florida, and their alleged misconduct occurred in Florida.

        • Outcome: The court agreed with defendants. The court dismissed plaintiff’s claims for lack of personal jurisdiction because defendants’ alleged actions all occurred in Florida rather than New York, where plaintiff brought suit.

        • Special Notes: For each claim, the court considered where the “tort” at issue actually occurred. For “trespass to chattels,” the “relevant inquiry [wa]s whether a tortious act occurred in New York by the defendants. The act of damaging the Website at best, occurred in Florida, where defendants were located when they typed on their computer and accessed the Website’s hosting company in Florida. In the context of the Internet, the content of plaintiff’s website cannot be deemed to be located wherever the content may be viewed for jurisdictional purposes, as it has always held that the mere fact that the posting appears on a web site in every state will not give rise to jurisdiction in every state.”1

    4. Practice Pointers

      For jurisdictional concerns, consider where the action occurred.

    1. Id. at *11. 

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