Delan v. CBS, Inc.

• Decision Date: 09 December 1981
• Citation: 111 Misc.2d 928,445 N.Y.S.2d 898
• Parties: David DELAN, by his guardian Ad Litem, Elaine Delan v. CBS, INC. and Bill Moyers.
• Court: New York Supreme Court

Page 898

445 N.Y.S.2d 898

111 Misc.2d 928

David DELAN, by his guardian Ad Litem, Elaine Delan v. CBS, INC. and Bill Moyers.

Supreme Court, Special Term Queens County, Part 1.

Dec. 9, 1981.

Vincent P. DiStephan, Lake Success, for plaintiff.

Coudert Brothers, New York City, for defendants.

MEMORANDUM

HYMAN, Justice.

This is an action brought on behalf of the plaintiff, David Delan, by his guardian ad litem seeking to recover damages upon two causes of action. The first cause of action is for false imprisonment; the second is for the violation of plaintiff's Civil Rights of "privacy" pursuant to sections 50 and 51 of the Civil Rights Law of this State.

The defendants' answer asserts a "Second Affirmative Defense" of statute of limitations as to both alleged causes; it also asserts, as a "First Affirmative Defense", that the television program complained of "was privileged under the First and Fourteenth Amendments to the United States Constitution"; as a "Third Affirmative Defense", it pleads that "the filming and broadcast of the television program * * * was duly consented to in writing by plaintiff."

Plaintiff moves and defendants cross move for summary judgment. The motion and cross motion are opposed.

In order to become conversant with the factual situation, the court not only permitted extensive argument by the parties, but also directed that the defendants supply to the court and counsel a full and complete viewing of the film involved. Defendants complied with the court's directive, thus enabling the court to view the video tape and to make its own observations.

Sufficiency of Plaintiff's Moving Papers on Motion for

Summary Judgment.

Plaintiff's motion is based upon the "primary affirmation" and "reply affirmation" of his attorney. Defendants contend that this is insufficient in and of itself and that it must be made by one having "knowledge of the facts" who must "lay bare" all the facts upon which such a motion must be based so as to prove that "as a matter of law" there is no meritorious defense to the action (CPLR 3212 Five Boro Elec. Contr. Assn. v. City of New York, 37 A.D.2d 807, 324 N.Y.S.2d 830, affd. 33 N.Y.2d 676, 349 N.Y.S.2d 374, 304 N.E.2d 238; Koch v. Haven-Busch Co., 41 A.D.2d 774, 341 N.Y.S.2d 865). Under normal circumstances, where the affirmation is made by an attorney, who appears personally not to have "actual knowledge of the facts", the application may not be entertained since such affirmation would not have any probative value and must be disregarded as hearsay (Marine Midland Bank v. Hall, 74 A.D.2d 729, 425 N.Y.S.2d 693; Rubin v. Rubin, 72 A.D.2d 536, 421 N.Y.S.2d 68; De Fren v. Russell, 71 A.D.2d 416, 422 N.Y.S.2d 433).

But, CPLR 3212(b) has therein provided within its verbiage the phrase "and * * * other available proof", upon which plaintiff-movant relies. Here we have the undeniable fact and circumstance of a plaintiff being of sufficient mental illness who has for some prior period of time and at present been confined to Creedmoor Psychiatric Center, a New York State owned and operated mental health institution. Indeed, at the time of the making of this motion, he was still confined to that institution because of his disability.

The attorney's reply affirmation specifically and unequivocally indicates a lack of personal knowledge, but he states with regard to such deficiency of personal knowledge:

"the documentary evidence submitted * * * clearly * * * lays bare for the Court all of the circumstances involved. Thus, since the factual circumstances are demonstrated * * * by documentary evidence and admissions on the part of the defendants, there is no need for an affidavit of facts by plaintiffs themselves (CPLR Sec. 3212)."

In keeping with the spirit of the remedy of summary judgment, and giving a liberal interpretation to CPLR 3212(b) herein, this court can and will consider the claimed documentary evidence referred to in movant's attorney's affirmations (4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3212.09; Getlan v. Hofstra Univ., 41 A.D.2d 830, 342 N.Y.S.2d 44; Long Island R. R. Co. v. Grossman, 3 A.D.2d 763, 160 N.Y.S.2d 237), particularly in view of the peculiar and unusual circumstances involved in the instant matter.

The Statute of Limitations Defense.

The court now considers whether plaintiff's causes of action are time barred.

Bearing in mind that the actions are for "false imprisonment" and for "violation of plaintiff's Civil Rights (privacy) pursuant to Civil Rights Law, Sections 50 and 51", the court notes that both causes are governed in the first instance by CPLR 215(3), a one-year statute of limitations.

The complaint alleges that both the cause of action for false imprisonment and the cause of action for invasion of plaintiff's privacy accrued on or about May 12, 1978, although the television broadcast took place on or about December 26, 1978. It would therefore, in the first instance, seem that since the action against the defendant CBS, Inc. was commenced by service of a summons on December 10, 1979, and upon the defendant Moyers on December 27, 1979, that the statute (CPLR 215) would apply and that the actions would be barred. However, the court finds otherwise.

CPLR 208 provides in pertinent part that:

"If a person entitled to commence an action is under a disability because of * * * insanity at the time the * * * action accrues, and the time otherwise limited for commencing the action * * * is less than three years, the time shall be extended by the period of disability * * *."

On August 23, 1979, it had been judicially determined that plaintiff, "as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense" (Criminal Court Proceeding--Q 917846--Queens County, for Assault--2d degree--"D" Felony--Penal Law, Sec. 120.05). He was thereupon directed to be placed in a mental institution under the care and custody of the Commissioner of Mental Hygiene and ultimately was transferred sometime thereafter by the Commissioner to the Creedmoor Psychiatric Center. The court again notes that at the time of the commencement of this action and the bringing on of this motion plaintiff was still confined at Creedmoor, and the documentary proof produced by said institution indicates a lack of any improvement.

Defendants' attempt to place plaintiff's mental condition outside the tolling statute, arguing that his condition as such is not strictly included in CPLR 208. The court does not agree that the statute requires such a strict construction. In construing CPLR 208, the court in Hurd v. County of Allegany, 39 A.D.2d 499, 336 N.Y.S.2d 952, interpreted the meaning of the word "insane", for the purposes of such statute, to include a temporary unsoundness of mind resulting in incapacity to protect one's rights, and that the word "insanity" is not to be limited only to a chronic or fixed condition.

It therefore appears to the court that the statute of limitations defense must be stricken as a matter of law, and that partial summary judgment be granted to plaintiff in that respect. In so doing, the court at this point makes no determination as to the viability of either cause of action. Those questions are discussed below.

The Action for False Imprisonment.

To sustain an action for false imprisonment a plaintiff has the burden of proof of establishing certain specific elements, namely (1) that it was defendants' intent to confine plaintiff; (2) that plaintiff was confined; (3) that plaintiff was conscious of being confined; (4) that plaintiff did not consent to being confined, and (5) the confinement was not otherwise privileged (Parvi v. Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960; Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310).

In the matter at bar, the plaintiff has attempted to support his position of "confinement" by referring to the affidavit of one Dr. Fromm, which was submitted by defendants. Plaintiff infers and concludes therefrom that he, along with other patients of the psychiatric center, was confined to one room and that this constituted "restraint" or "confinement". Both the plaintiff and defendants place reliance upon Dr. Fromm's affidavit on the issue of "confinement".

In analyzing Dr. Fromm's affidavit on that issue, the court notes the following statement:

"9. At all times during the filming of 'Any Place but Here', the patients were free to exit and enter the room where the filming was taking place. Indeed, it was CBS's desire to minimize their interference with the normal activities of the patients. In fact, none of the patients, including David Delan, were restricted or in any way inconvenienced * * *."

Plaintiff also refers to a Supplemental Affidavit of one Rita Amatulli, which was supplied by him, and who immediately prior to and at the time of the filming was Coordinator of Volunteer Services and Public Relations at Creedmoor Psychiatric Center, and who now is a Public Educational Specialist with the New York State Office of Mental Health, New York City Regional Office, as support for his view that he was "confined" and "restrained" behind locked doors and could not leave the ward.

The aforementioned affidavit, states in pertinent part:

"I believe that I was present on each day of the filming on the Central Queens Unit.

On each day of the filming at the Central Queens Unit, the staff helped those clients who did not sign release forms to move to a neighboring ward.

While the doors between wards were locked according to usual practice at Creedmoor, there was movement between wards by staff, and it was possible for patients to also move between wards when the ward door was opened by people entering or exiting for various reasons." (Emphasis added.)

The court cannot and does not accept the rationalization by plaintiff's counsel that such activity constituted a "restraint" or "confinement". Plaintiff...