In January 2006, plaintiff John Greenaway was employed as concierge/doorman at a cooperative apartment building located at 2 Horatio Street in Manhattan. With Plaintiff's consent, defendant Sandra Balan, a licensed real estate agent employed by defendant Corcoran Group, took his photograph, and, allegedly without his consent, mailed the photograph on a postcard advertising Defendants' services to the more than 200 residents at the building. Plaintiff alleges that, as a result, he "has been caused to sustain mental strain and distress, humiliation, exposure to public ridicule, disturbance of peace of mind, damage to his reputation, social standing, good name, inviolate personality, individual sentiments and feelings, and invasion of his right to privacy." (Verified Complaint, ¶ 24.)

With this motion, Defendants move for an order, pursuant to CPLR 3212, "for summary judgment, dismissing the Complaint." (See Affirmation in Support of Motion for Summary Judgment ["Affirmation in Support"], ¶ 1].) In support, they submit the affidavit of defendant Balan, and quote rather extensively from Plaintiff's examination before trial. As to the latter, Defendants fail to submit the transcript of the deposition, nor does Defendants' counsel state that the quoted statements were made in his presence. The complete transcript is, however, submitted by Plaintiff in opposition, and, except for a few obvious typographical errors, the testimony is as Defendants quote it. In any event, the quoted testimony, at the least, creates triable issues precluding summary judgment to Defendants.

Plaintiff and defendant Balan assert different versions of the circumstances leading to the taking of the photograph and its subsequent distribution on the postcard mailing. There is no dispute that Mr. Greenaway gave Ms. Balan his consent to the taking of the photograph, and [*2]there is no dispute that he did not consent in writing to its use for advertising purposes, but there is dispute about whether Mr. Greenaway gave oral consent to that use.

According to Ms. Balan, she "became friendly with the Plaintiff through previous brokerage activity regarding the selling of units within the building" at 2 Horatio Street (Affidavit in Support of Motion for Summary Judgment ["Affidavit in Support"], ¶ 2); "[h]aving had success using advertising postcards with pictures of the building and the doorman of other buildings, [she] asked the Plaintiff if he would like to pose for such a postcard to be mailed to residents within the building" (id., ¶ 3); "Plaintiff agreed and posed for [her] to take his picture," but "asked that she not send the postcard to certain apartments which he knew had other real estate brokers living in them" (id., ¶ 4); "Plaintiff dictated a list of such apartments," and she "did refrain from sending [the postcard] to the apartments dictated to [her] by the Plaintiff" (id., ¶ ¶ 5, 6); she "did the mailing one time and did not receive any business or related calls from the postcard" (id., ¶ 6.)

At his deposition, Plaintiff acknowledged that the photograph was taken with his consent, but otherwise gives a different version of the circumstances.

"She walked into my building and she said good morning. I said good morning. I was talking to someone and she just said, John, can I take a picture of you?' I said, Why do you want to take a picture of me? I will just break your camera.' I said that jokingly. She said, You're a nice looking fellow.' Besides I won't be coming around much anymore and I want something to remember you by.' I said, sure, fine.' I though about it and I did, because I liked her and she was a nice person. She wanted to remember me, fine." (Examination Before Trial of John Greenaway ["Greenaway Deposition"], at 16.)

As to the harm allegedly resulting from the distribution of the photograph, Plaintiff acknowledged that he suffered no financial loss, but testified to both emotional and reputational harm.

"I was upset because I knew this was against our policy taking pictures and things like that. My boss had come to me and he said, You know, you could lose your job for this.' That was on my mind for a long time. It kept bothering me. I was upset about this, because I didn't want to lose my job. He said, you know, it's against company policy to take pictures and things like that.'

...

People came down to me when they got these mailers and they said to me, Oh John, you take such a nice picture.' I had no idea what they were talking about. When they showed it to me and I looked at it they said, You don't remember taking it? I said, I remember that.' They said, Well, you know you took a nice picture. How much money did they give you for this, for helping Corcoran?' I said, Nobody gave me anything, nobody gave me anything for this.'

...

Yeah, I was upset because they kept coming to me for about a month after that and asking [*3]me, you know, did you ever get anything for that. John, by the way, did you ever get anything for that this?' I was really upset. I was worried about losing my job, worrying about people thinking I was trying to help them sell apartments and it was a whole mess.

...

Yes, because I had known these people in the building over the twenty-five years that I had been there. The people that had been there for a long time they have always liked me. I have always liked them. We got along very well. They thought I was doing things behind the company's back and trying to help Corcoran sell apartments. They said, Why are you helping Corcoran sell apartments?' I said, I am not helping them do anything.' They said, you let them take your picture.' I said, I took the pictures for the lady only,' and this went on for about a month or so and it just upset me.

...

Well, that's what I was saying because of the fact that people have known me for all the years and they knew I was a pretty decent guy and I never did things underhanded or deceitful and things like that. They all liked me and they thought something was wrong that I would try to help somebody sell apartments in the apartment building without getting paid for it and this and that." (Greenaway Deposition, at 20, 22-23, 23-24, 26-27.)

Plaintiff specifically alleges a violation of §51 of the Civil Rights Law. (Verified Complaint, ¶ 23.)

Section 51 of the Civil Rights Law provides, "Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained [of such person] may maintain an equitable action . . . to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice . . . , the jury, in its discretion, may award exemplary damages." "In order to establish liability . . . , plaintiff must demonstrate each of four elements: (i) usage of plaintiff's name, portrait, picture or voice, (ii) within the State of New York, (iii) for purposes of advertising or trade, (iv) without plaintiff's written consent." (Molina v Phoenix Sound Inc., 297 AD2d 595, 597 [1st Dept 2002].)

"Written consent is explicitly required by the statute"; "[n]either oral nor implied consent is a complete defense to a privacy action," although "oral and implied consent are available as partial defenses in mitigation of damages." (Calsar v Chemical Bank, 66 NY2d 698, 700-01 [1985].)

In her affidavit, Ms. Balan characterizes her mailing as "advertising postcards" (see Affidavit in Support, ¶3), and the distribution certainly falls within "advertising purposes" as used in the statute. "A name, portrait or picture is used for advertising purposes' if it appears in a publication which, taken in its entirely, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service." (Beverly v Choices Women's Med. Center, 78 NY2d 745, 751 [1991].) [*4]

Nor is there any dispute that Plaintiff's photograph was distributed without his written consent. (See Affirmation in Support, ¶ ¶ 12, 15.) Defendants' contention that "Plaintiff's admission under oath that he consented to the taking of his photograph should certainly satisfy" the statutory requirement of written consent (see id.), misses the mark on at least two grounds. Consent to a photograph is not the same as consent to use of the photograph for advertising purposes (see Brinkley v Casablancas, 80 AD2d 428, 434 [1st Dept 1981]), but it is the latter that the statute requires. And the statute requires that the consent be "first obtained," i.e., before the photograph is used.

Defendants' admitted failure to obtain Plaintiff's written consent to the use of his photograph on the "advertising postcards" distributed in New York is "dispositive on the issue of liability." (See id. at 442.)

"The primary purpose of this legislation was to protect the sentiments, thoughts and feelings of an individual," in effect "to grant recognition to the . . . right of an individual to be immune from commercial exploitation." (See Flores v Mosler Safe Co., 7 NY2d 276, 280-81 [1959].) It may be that, at least at one time, "in most cases where damages have been awarded under the Civil Rights Law, they have been nominal." (See Lombardo v Doyle, Dane & Bernback, Inc., 58 AD2d 620, 621 [2d Dept 1977].) And a jury might well accept Ms. Balan's version of material events, and Plaintiff's "[o]ral consent . . . may serve to limit [recovery] to a nominal sum." (See Lomax v New Broadcasting Co., Inc., 18 AD2d 229, 229 [1st Dept 1963]; see also Harris v Gossard Co., 194 AD 688, 692 [1st Dept 1921].)

But those are determinations for the jury, and the Court cannot say, as Defendants would have it, that, as a matter of law, Plaintiff "suffered no damages," or that the harm he alleges to his feelings is "far fetched," or that there was "a de minimus violation of his privacy rights" (see Affirmation in Support, ¶ ¶ 8, 15, 20.) Moreover, Plaintiff here alleges reputational harm, in addition to general emotional harm, and damages for reputational harm are recoverable for violation of the statute. (See Binns v Vitograph Co., 210 NY 51, 54, 59 [1913].)

Although cited for the first time in reply, the Court has noted Defendants' reliance on D'Andrea v Rafla-Demetrious (972 F Supp 154 [EDNY 1997], aff'd 146 F3d 64 [2d Cir 1998]), in which Judge Gleeson reads New York law as holding that " isolated' or fleeting and incidental' uses of a person's name or image, even if unauthorized, are insufficient to establish a invasion of privacy claim" (id. at 157.) With one exception, Judge Gleeson cites state and federal decisions in cases involving use of a person's name or image in a book or motion picture; the one exception being "republication . . . of newsworthy photograph of an actress." (See id.)

"Federal case law is at best persuasive in the absence of state authority; it is largely irrelevant to a peculiarly local question." (Cox v Microsoft Corp., 290 AD2d 206, 207 [1st Dept 2002].) Even assuming that the authority cited by Judge Gleeson can be applied to a purely commercial medium like an "advertising postcard," or where reputational harm can be proved, it cannot help Defendants here. Plaintiff's photograph comprised the entire "face" of the postcard, [*5]with the caption "Not Just Your Home," and Ms. Balan's affidavit noted her "success using . . . pictures of the . . . doorman of other buildings" (see Affidavit in Support, ¶ 3.) The Court has no difficulty concluding that the use of Plaintiff's photograph was not, as a matter of law, "isolated" or "fleeting and incidental," since it was "directly related to the purpose" of the postcard (see Schoeman v Agon Sports, LLC, 11 Misc 3d 1077 [A], 2006 NY Slip Op 50605 [U], * 3 [Sup Ct, Nassau County 2006].)

And then there is the possibility of exemplary damages if the jury finds a "knowing use" of Plaintiff's photograph in violation of the statute. (See Welch v Mr. Christmas, Inc., 57 NY3d 143, 150 [1982].)

"Although recovery of exemplary or punitive damages in a common-law action requires a showing of conscious disregard of the rights of others or conduct so reckless as to amount to such disregard . . . , it is . . . within the province of the Legislature in authorizing the award of such damages to establish other and different criteria . . . In Section 51 of the Civil Rights Law the Legislature has done just that . . . For recovery of exemplary damages under the statute, . . . no more need be shown than knowing use." (Id.; see also Hernandez v Wyeth-Ayerst Labs., 291 AD2d 66, 70 [1st Dept 2002].)

In contending that Defendants "did not know, nor did they have reason to know that [Plaintiff's] oral consent would not be sufficient to protect them from a suit by him" (Affirmation in Support, ¶ 18), Defendants again miss the meaning of the statute. It is not necessary to an award of exemplary damages that Defendants, in effect, knew that they were violating the statute.

It is sufficient if they used Plaintiff's photograph on the "advertising postcards" knowing that he had not consented that use. (See Cohen v Hallmark Cards, Inc., 45 NY2d 493, 499-500 [1978]; see also Welch v Mr. Christmas, Inc., 57 NY2d at 150-51; Morse v Studin, 283 AD2d 622, 622 [2d Dept 2001]; Brinkley v Casablancas, 80 AD2d at 443 ["no knowledge of the lack of consent," "no action for exemplary damages lies"].)

Here, again, the jury must determine whether it believes Plaintiff's version or Ms. Balan's version, or perhaps some part of both, on the question of oral consent. (See Morse v Studin, 283 AD2d at 622 ["whether or not the defendant knew or should have known that he lacked genuine consent to use the photographs is an issue of fact."].) "Good faith or its absence; mistake or knowing impertinence; misapprehension of evidence of approval; or such an absence of such evidence that no reasonable man would imply approval, are all matters which a jury might be allowed to consider, one way or another, in approaching the task of assessing or withholding exemplary damages." (Roberts v Conde Nast Pubs., Inc., 286 AD 729, 730 [1st Dept 1955].)

Defendants' motion is denied.

January 7, 2010_____________________ [*6]

Jack M. Battaglia

Justice, Supreme Court