Plaintiff brings this action for: (1) violation of §§50-51 of the New York Civil Rights Law, as against defendants Time Warner Cable, Inc, Viacom Inc., Idea Village Products Corp. ("Idea Village"), Spark Innovators, Inc. ("Spark"), and Blue Moon Studios, Inc. ("Blue Moon"); (2) breach of contract, as against Blue Moon; (3) fraud, as against Idea Village, Spark and Blue Moon; and (4) unjust enrichment, as against all defendants. Plaintiff is seeking $100,000 in compensatory damages as against all defendants, costs (including attorney's fees) and punitive damages, as against Idea, Spark , and Blue Moon in the amount of $250,000. Spark and Blue Moon now move, by Order to Show Cause, to dismiss pursuant to CPLR 3211(a)(7) and (a)(8). By separate Order to Show Cause, Idea moves to dismiss pursuant to CPLR 3211(a)(7). Plaintiff opposes both motions. No other party submits papers.

Plaintiff is a model and actor. Defendant Ingrid Schmerling d/b/a Meredith East Model Agency ("Meredith") was plaintiff's talent agent at the time that the causes of action arose. Blue Moon is a production company that was hired to run an advertising campaign for one of Spark's products, an electric shaver known as "Micro Force." [*2]Blue Moon was in charge of hiring the actors and shooting an infomercial for the Microforce product. Idea Village is the developer and marketer of several "As Seen on TV" products. Defendants Time Warner Cable, Inc. and Viacom Inc. are alleged to have aired the commercials bearing plaintiff's image after the expiration of plaintiff's contract with Blue Moon.

On May 29, 2008 plaintiff entered into a "Talent Agreement," through Meredith, with Blue Moon. The agreement states the following, in relevant part:

I Marshall Simon being of legal age, hereby give Blue Moon . . . the absolute and irrevocable right and permission to use, reproduce, edit, and assigns the absolute and irrevocable copyright, publish and/or resell photographic images. This may include moving pictures and/or videotaped images of me with or without my voice, or in which I may included in whole or in part photographed, taped, videotaped, an [sic] or recorded on 5-29-08 and thereafter, and to circulate the same in all forms and media for art, advertising, trade, competition of every description and/or any other lawful purposes whatsoever. I also consent to the use of any printed matter including but not limited to advertisements, packaging, package inserts, still photographs, catalogs, in store signage, trade, consumer promotions, public relations and Internet in conjunction with the Micro Force campaign.

In a handwritten note near the signature line at the bottom, plaintiff wrote "12 mo usage."

Pursuant to the Talent Agreement, plaintiff participated in an infomercial for the Microforce razor, for which he was compensated approximately $1500.00. Plaintiff, who asserts that the agreement expired on May 29, 2009, discovered that, after that date, his image was still being used in "television commercials, on the internet, and on packaging of products being sold in New York State and throughout the country."

Thereafter, Meredith sent an invoice to Spark Innovators c/o Idea Village, dated May 12, 2010, for the following:

MICRO FORCE SHAVE renewal fee for Commercial June 2009-June 2010 . . . 400.00 [*3]

same as above Renewal fee for June 2010-June 2011 . . . 400.00

Renewal fee for MICRO FORCE SHAVER-web video Jan 1, 2010-Dec 31, 2010 . . . 400.00

The invoice included Meredith's fee of 240.00, for a total amount of $1440.00. On June 1, 2010, Sparks issued a check to Meredith for the total amount requested.^[FN1] Meredith deposited the check and on June 15, 2010 she sent an email to "Fred" at Blue Moon stating that "Marshall has agreed to the renewal until June 2011 with the proviso that he wants to re-negotiate after that date." In another email sent to Lisa Mulligan at Blue Moon, Meredith states:

Yes- Spark Innovators has sent a check for the Micro Force commercial for Marshall Simon.

They paid a renewal fee until June 2011.

They also paid for the web site usage from January 1-December 31, 2010.

In an email sent on June 16, 2010 to plaintiff's attorney and copied to "Lori" at Idea Village, Meredith claims that a check was sent to plaintiff on June 15, 2010. Plaintiff concedes that he received a check from Meredith but claims that he did not cash it.

Sparks and Blue Moon, in support of their motion, submit: the complaint; the Talent Agreement, dated May 29, 2008; an invoice from Meredith; a copy of the front and back of a check from Spark, made out to Meredith; several email correspondence; the affidavit of Raj Khubani, President of Spark; and the affidavit of Fred Vanore, President of Blue Moon. The moving defendants assert that plaintiff has no cause of action for violation of Civil Rights Law ��50-51 ^[FN2] because it is a claim that is based upon "lack of written consent." The moving defendants claim that plaintiff "irrevocably" assigned the rights to use his likeness when he signed the Talent Agreement. Further, the moving defendants assert that plaintiff's granted rights to the continuing use of his image, through his agent, when Meredith "accepted and deposited the renewal fees. Even if plaintiff has a viable cause of action against the [*4]moving defendants, they claim that plaintiff cannot obtain personal jurisdiction over them because both companies are located in New Jersey, they have no agents or offices in New York, and that negotiation of the contract occurred in New Jersey and the production of the commercial also occurred there. Finally, the moving defendants argue that, if the action is not dismissed pursuant to CPLR 3211(a)(7) or (a)(8), it should be dismissed on the grounds of forum non conveniens.

Idea Village, in support of its motion, claims that the complaint should be dismissed as to it because "there is no agreement or contract between Idea Village and Marshall Simon or one between Idea Village and Blue Moon Studios as it relates to this commercial." Thus, Idea Village argues, it had no "control over hiring of a producer for the commercial, production of the commercial, nor did they have any say in the casting of the talent in the commercial.^[FN3]"

Plaintiff, in opposition, submits the following, not duplicative of the other submissions: an invoice from Meredith, a color photocopy of packaging for the MicroForce shaver; and a receipt from a CVS Pharmacy, located in New York, for the Microforce Shaver. Plaintiff argues that he has stated a cause of action for violation of his civil rights and that defendants are merely stating defenses to that cause of action. Further, plaintiff contends that both Blue Moon and Spark are subject to CPLR 302 jurisdiction.

Initially, CPLR 302 states, relevant to our purposes here:

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person, or through an agent:

(3) commits a tortious act without the state causing injury to person or property within the state . . .if he

(I) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or [*5]

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate . . . commerce

In support of his contention that this Court has jurisdiction over Sparks, plaintiff submits a receipt for a Microforce Shaver, which he shows contained his likeness, which he purchased at a CVS Pharmacy in New York City. Although plaintiff has failed to make a prima facie showing that personal jurisdiction exists in the case of Sparks, he has nonetheless made a "sufficient start" in that direction. ( see; Peterson v. Spartan Industries, Inc., 33 NY2d 463[1974] ). It appears from the papers submitted here that there are facts that exist, but cannot yet be stated, which would aid in determining the jurisdictional issue. (see;CPLR 3211[d]). The court in Peterson found:

A prima facie showing of jurisdiction . . . simply is not required and in actual practice, even assuming a workable definition, may impose undue obstacles for plaintiff, particularly one seeking to confer jurisdiction under the long arm' statute. (CPLR 302.) In these cases especially, the jurisdictional issue is likely to be complex. Discovery is therefore, desirable, indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits . . . We believe plaintiffs have made a sufficient start . . . [plaintiffs] should have further opportunity to prove other contacts and activities of the defendant in New York as might confer jurisdiction under the long arm statute, thus enabling them to oppose the motion to dismiss. (Id. at 467).

Thus, the portion of the motion, as it relates to jurisdiction over Sparks is denied without prejudice to renew upon the completion of limited discovery on the issue of whether or not the court has personal jurisdiction over Sparks.

Some of the factors that a court should consider, in determining whether jurisdiction should be retained in New York under the doctrine of forum non conveniens, include "the difficulties for defendant in litigating the claim in this State, the burden on the New York courts in entertaining the suit and the availability of another more convenient forum in which plaintiff may obtain redress." (Waterways, Ltd. v. Barclays Bank PLC, 174 AD2d 324,327[1st Dept. 1991]). It is well established that, "unless the balance [of these factors] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." (Id.). Defendants have failed to make such a showing. Indeed, while it is true that the moving defendants are New [*6]Jersey based companies, they would be no more inconvenienced by coming to New York than plaintiff would be "by the denial to him of access to our courts to redress his grievance," and therefore the Court cannot conclude "that New York is a clearly inconvenient forum or that the ends of justice and the convenience of the litigants would be best served by requiring plaintiff to bring his action in [New Jersey]."

Blue Moon submits the affidavit of its president, Fred Vanore, who states:

Blue Moon Studios is a New Jersey corporation organized and existing under the laws of the State of New Jersey, having its principal office in West Paterson, New Jersey. Blue Moon Studios has no office, agent or representative for the conduct of business in the State of New York, is not qualified to do business in the State of New York, and does not own, use or possess any real property therein.

Mr. Vanore goes on to state that Blue Moon's filming, production and editing is conducted in New Jersey and that plaintiff's contract was entered into through his agency, which was located in New Jersey.

In opposition, plaintiff asserts that "Blue Moon has directly solicited plaintiff to work with it." Plaintiff fails to submit any evidence that Blue Moon solicited him directly, rather than through Meredith, another New Jersey company. Even if plaintiff could show direct solicitation, it is well settled that "mere solicitation of business within the state does not constitute the transaction of business within the state, unless the solicitation in New York is supplemented by business transactions occurring in the state . . . or the solicitation is accompanied by a fair measure of the defendant's permanence and continuity in New York which establishes a New York presence." (O'Brien v. Hackensack University Medical Center, 305 AD2d 199[1st Dept. 2003]).

Although plaintiff speculates that Blue Moon must do business in New York because it "is a sophisticated company with Fortune 500 clients," there is absolutely no support in the record for such allegations.

Idea Village seeks relief under 3211(a)(7) only. "On a motion to dismiss [*7]under CPLR 3211(a)(7) "...the court's task is to determine only whether the facts as alleged, accepting them as true and according plaintiff every possible favorable inference, fit within any cognizable legal theory." (Ladenburg Thalmann & Co., Inc. v. Tim's Amusements, Inc.,275 AD2d 243, 245[1st Dept. 2000]).

The legislature enacted Sections 50 and 51 of the Civil Rights Law in 1903 in reaction to the Court of Appeal's holding in Roberson v. Rochester Folding Box Co., 171 NY 538, where the court found that there was no common law right of privacy to be found anywhere in "New York jurisprudence." (Brinkley v. Casablancas, 80 AD2d 428[1st Dept. 1981](internal citations omitted). CPLR �50 states:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

CPLR �51 states, in relevant part:

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 as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, 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 in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.

In order to state a valid cause of action for violation of Sections 50 and 51 of the Civil Rights Law, plaintiff must allege (1) that his image was used by defendants; (2) that his image or likeness was used for commercial and business purposes (as opposed to being used in matters relating to legitimate public interest); and (3) that the use was unauthorized, without plaintiff's consent. (see [*8]Nieves v. Home Box Office, Inc., 11 Misc 3d 1058(A)[Sup. Crt. NY Cnty]). By their terms, Section 50 and 51, when read together, apply:

to any use of a person's picture or portrait for advertising or trade purposes whenever the defendant has not obtained the persons written consent to do so. It would therefore apply . . . in cases where the plaintiff generally seeks publicity, or uses his name, portrait, or picture, for commercial purposes but has not given written consent for a particular use . . . [t]hus where the written consent . . . has expired or the defendant has otherwise exceeded the limitations of the consent, the plaintiff may seek damages or other relief under the statute . . . (Stephano v. News Group Publications, Inc., 64 NY2d 174,183[1984]).

Plaintiff, in his complaint, alleges that "after the Usage Term expired, plaintiff discovered that his Images were being used in television and internet advertisements, without plaintiff's prior knowledge or authorization . . ." and that he informed Idea Village "directly or indirectly through defendant Ingrid, of the unauthorized use and/or assignment of the Images." When viewing plaintiff's allegations as true, as the Court must on a motion to dismiss, plaintiff has alleged all of the elements required to establish a cause of action for violation of the Civil Rights Law as against Idea Village.

Wherefore it is hereby

ORDERED that defendant Blue Moon Studios, Inc. and Spark Innovators, Inc.'s motion to dismiss is granted as to defendant Blue Moon Studios, Inc. only; and it is further

ORDERED that the complaint is hereby severed and dismissed as to defendant Blue Moon Studios, Inc.; and it is further

ORDERED that the remainder of the action shall continue; and it is further

ORDERED that the motion, as it relates to defendant Spark Innovators, Inc., is denied without prejudice to renew after completion of limited discovery on the issue of personal jurisdiction; and it is further [*9]

ORDERED that defendant Idea Village Products Corp.'s motion to dismiss is denied; and it is further

ORDERED that defendants shall serve an answer to the complaint within 10 days after service of a copy of this order with notice of entry; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

DATED: September 21, 2010______________________________EILEEN A. RAKOWER, J.S.C.