Freihofer v. Hearst Corp.
| Decision Date | 21 June 1984 |
| Citation | 477 N.Y.S.2d 847,102 A.D.2d 974 |
| Parties | Wayne D. FREIHOFER, Respondent-Appellant, v. HEARST CORPORATION, Doing Business as Capital Newspapers Group et al., Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
O'Connell & Aronowitz, P.C., Albany (Thomas F. Gleason, Albany, of counsel), for appellant-respondent.
Tate, Bishko & Ruthman, Albany (Edward R. Feinberg, Albany, of counsel), for respondent-appellant.
Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.
Cross appeals from an order of the Supreme Court at Special Term, entered October 18, 1983 in Albany County, which, inter alia, partially granted defendant's motion to dismiss the complaint and for summary judgment.
Plaintiff and his wife cross-filed for divorce. In the course of the proceedings, motions were made for temporary relief. Defendant published in its newspapers certain of the allegations and statements of the parties made in their affidavits. At least one publication took place after plaintiff demanded that publication cease.
Plaintiff has commenced this action in which he pleads causes of action for abuse of process, intentional infliction of emotional harm, and violations of section 235 of the Domestic Relations Law and sections 50 and 51 of the Civil Rights Law. Defendant moved for dismissal of the complaint or, in the alternative, for summary judgment. Plaintiff cross-moved for summary judgment. Special Term dismissed the abuse of process and Domestic Relations Law causes of action; granted defendant summary judgment on the intentional infliction of emotional distress causes of action; denied defendant summary judgment on the Civil Rights Law violation causes of action; and denied plaintiff's cross motion for summary judgment. These cross appeals ensued. *
It is readily apparent that section 235 of the Domestic Relations Law does not apply to this defendant. Subdivision 1 of that section states:
An officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom the testimony is taken, or his clerk, either before or after the termination of the suit, shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court (emphasis added).
The only prohibitory language of the statute is directed toward officers of the court and their clerks. One may publish details of a divorce action based on files obtained without court order unless publication thereof is otherwise tortious (Shiles v. News Syndicate Co., 27 N.Y.2d 9, 313 N.Y.S.2d 104, 261 N.E.2d 251, cert. den. 400 U.S. 999, 91 S.Ct. 454, 27 L.Ed.2d 450).
We find no error in Special Term's summary dismissal of the cause of action for intentional infliction of emotional distress. A cause of action for the intentional infliction of emotional distress lies when "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another" (Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 373 N.E.2d 1215). Additionally, it has been held that the conduct must have 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" (Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86, quoting Restatement, Torts 2d, § 46, Comment d).
Special Term concluded that plaintiff had failed to demonstrate his ability to sustain so great a burden.
Special Term refused to dismiss plaintiff's causes of action pursuant to sections 50 and 51 of the Civil Rights Law after determining that issues of fact had been raised. The basic facts are conceded. Plaintiff's name and portrait were published without plaintiff's consent. Information contained in papers filed in conjunction with court proceedings was quoted. By enactment of section 235 of the Domestic Relations Law, the Legislature has determined that the public has no right to know the contents of records of divorce proceedings.
Section 50 of the Civil Rights Law states:
A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or...
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Freihofer v. Hearst Corp.
...use of plaintiff's name and photograph were of legitimate concern to the public. The Appellate Division unanimously affirmed (102 A.D.2d 974, 477 N.Y.S.2d 847), observing, in part, with respect to liability under Domestic Relations Law § 235: "One may publish details of a divorce action bas......
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...name and image were used for "advertising" or "trade" purposes presents a question of fact for the jury. Freihofer v. Hearst Corp., 477 N.Y.S.2d 847, 850 (N.Y. App. Div. 1984). Matthews, York Group and Milso argue that "Harry has demonstrated no damage as a result of the alleged misappropri......
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Freihofer v. Hearst Corp.
...motion to dismiss the complaint and for summary judgment and denied plaintiff's cross motion for summary judgment?" App.Div., 477 N.Y.S.2d 847.. KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ., ...