Arrington v. New York Times Co.

• Decision Date: 25 November 1980
• Citation: 78 A.D.2d 839,433 N.Y.S.2d 164
• Parties: , 6 Media L. Rep. 2354 Clarence W. ARRINGTON, Plaintiff-Respondent-Appellant, v. The NEW YORK TIMES COMPANY, Defendant-Appellant-Respondent, and Contact Press Images, Inc. et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 164

433 N.Y.S.2d 164

78 A.D.2d 839, 6 Media L. Rep. 2354

Clarence W. ARRINGTON, Plaintiff-Respondent-Appellant, v. The NEW YORK TIMES COMPANY, Defendant-Appellant-Respondent and Contact Press Images, Inc. et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Nov. 25, 1980.

H. Gouraige, New York City, for plaintiff-respondent-appellant.

F. Abrams, New York City, for defendant-appellant-respondent.

T. Schad, New York City, for defendants-respondents.

Before KUPFERMAN, J. P., and SULLIVAN, LUPIANO, LYNCH and CARRO, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered April 7, 1980, which granted the motion of the defendants Contact Press Images, Inc., Gianfranco Gorgoni, and Robert Pledge to dismiss the complaint against them and granted the motion of the defendant New York Times to dismiss the complaint against it but granted leave to the plaintiff to serve an amended complaint against the New York Times for violation of the right to privacy not based on an alleged violation of sections 50 and 51 of the Civil Rights Law, modified upon the law to the extent of striking the leave to the plaintiff to serve an amended complaint, and otherwise affirmed, without costs or disbursements.

An article on the black middle class was published in the Sunday Magazine section of the New York Times. A photograph of the plaintiff, not named, appeared on the cover of the section with a caption calling attention to the article inside. Claiming that he had never consented to the taking of the photograph, that the article was neither about him nor was he so much as mentioned in it, and that he strongly disagreed with its thesis, the plaintiff brought action for invasion of his right to privacy against the newspaper, the freelance photographer, the photographic agency and its president. His action claimed a constitutional and common law right to privacy as well as such a right under sections 50 and 51, Civil Rights Law. (Pursuant to the leave granted by Special Term, plaintiff has served an amended complaint asserting a constitutional and common law right to privacy.)

Special Term ruled correctly that plaintiff has no cause of action under the Civil Rights Law, but neither does he have a cause of action for violation of a common law or constitutional right of privacy. It has been consistently held in New York that there is no right to relief for invasion of privacy other than the statutory right granted by the Civil Rights Law (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 403 N.Y.S.2d 218, 374 N.E.2d 129). It may well be, as plaintiff maintains, that the Court of Appeals, when next confronted with the issue, will recognize a common law right to privacy. Meanwhile, constraining precedent compels the holding by this court that no such right presently exists.

No constitutional right to privacy authorizes this action. Where a constitutional right to privacy exists, it is to protect against governmental action or intrusion into purely familial matters (see: Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510). Efforts to expand this right beyond this scope have been rejected (see Paul v. Davis, 424...