Khaury v. Playboy Publications, Inc., 76 Civ. 4836.

• Decision Date: 22 April 1977
• Docket Number: No. 76 Civ. 4836.,76 Civ. 4836.
• Citation: 430 F. Supp. 1342
• Parties: Herbert KHAURY, a/k/a Tiny Tim, Plaintiff, v. PLAYBOY PUBLICATIONS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

430 F. Supp. 1342

Herbert KHAURY, a/k/a Tiny Tim, Plaintiff, v. PLAYBOY PUBLICATIONS, INC., et al., Defendants.

No. 76 Civ. 4836.

United States District Court, S. D. New York.

April 22, 1977.

Philip M. Damashek, P. C., New York City, for plaintiff.

Wachtell, Lipton, Rosen & Katz, New York City, for defendants; Ronald Barliant, Devoe, Shadur & Krupp, Chicago, Ill., of counsel.

OPINION AND ORDER

KEVIN THOMAS DUFFY, District Judge.

On September 22, 1976, plaintiff, the popular entertainer known to audiences as Tiny Tim, commenced this action for damages for defamation, personal and professional injury, and invasion of privacy in violation of Sections 50 and 51 of the New York Civil Rights Law, resulting from the publication of an article entitled "Miss Vicki" appearing in the October, 1975 issue of OUI magazine. Defendants have moved for summary judgment dismissing the complaint, claiming that the action is barred by the statute of limitations. Defendant Hugh Hefner also has moved to dismiss the action as against him for lack of in personam jurisdiction, asserting insufficient service of process.

In support of the motion for summary judgment, defendants have filed affidavits attesting to the following facts, which are not controverted by plaintiff. September 4, 1975 was designated as the on-sale date of the October 1975 issue of OUI magazine. A total of 1,779,990 copies were distributed to the public; of these, 1,499,845 were newsstand copies, 87,190 were by subscription, and the balance of the copies were distributed abroad or as complimentary issues. With respect to the newsstand copies, these magazines were delivered to common carriers in Illinois during the week of August 12, 1975, for shipment to the wholesale dealers who customarily delivered the copies to retailers within three days before or after the on-sale date. The retailers, in the ordinary course of business offered the copies to the public upon receipt. In the New York area delivery to the retailers was completed by September 7, 1975.

The subscription copies were delivered, each bearing a subscriber's name and address and correct postage prepaid, to the United States Postal Service, in Effington, Illinois, between August 13 and 19, 1975. In the normal course, these copies would reach subscribers within five days of mailing.

It is also undisputed that the governing statute of limitations is one year from the accrual of the claim. N.Y.C.P.L.R. 215(3). The only issue raised by this motion is when plaintiff's claim accrued. Defendants argue that under New York's "single publication rule," plaintiff's cause of action accrued no later than September 7, 1975, rendering this action, commenced on September 22, 1976, untimely. Plaintiff contends that his claim accrued in October 1975, the date shown on the issue, and, alternatively, that defendants have failed to sufficiently prove the on-sale date. He also posits that the "single publication rule" is inapplicable to alleged violations of Sections 50 and 51 of the New York Civil Rights Law. Plaintiff's position is untenable as a matter of law.

The leading New York case in the area is Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45 (1948), in which the New York Court of Appeals held that publication of a defamatory article in a mass distributed book, newspaper or periodical gives rise to but one cause of action "which arises when the finished product is released by the publisher for sale in accord with trade practice." 298 N.Y. at 126, 81 N.E.2d at 49.

In Zuck v. Interstate Publishing Corporation, 317 F.2d 727 (2d Cir. 1963), the Second Circuit construed the Gregoire formulation to mean the "on-sale" date, or date that the publication went on sale to the public at newsstands throughout the United States, notwithstanding the date stated on the magazine cover, or that on which copies were delivered to wholesaler dealers and common carriers for distribution to retailers.¹ The New York courts have likewise ruled that the date of actual distribution to the public controls. Sorge v. Parade Publications, Inc., 20 A.D.2d 338, 247 N.Y.S.2d 317 (1964); Sullivan v. Crisona, 54 Misc.2d 478, 283 N.Y.S.2d 62 (Sup.Ct.N.Y.Co.1967). Since substantially all of the copies of the October, 1975 issue of OUI magazine were distributed to the public by September 7, 1975, plaintiff's cause of action accrued on that date.

Plaintiff erroneously relies on Osmers v. Parade Publications, Inc., 234 F.Supp. 924 (S.D.N.Y.1964) in asserting that defendants, in order to succeed on their motion, must show the names and locations of newsstands where copies of the magazine were sold, the number of copies sold prior to and following the date of October, 1975 shown on the cover, and the extent to which predate sales are an established practice of magazine distribution. The court in Osmers was confronted with the situation where a limited number of copies of the offending publication were sold in advance of general distribution to the public, and in order to determine whether a motion to dismiss based on untimely assertion of the claim, the court set up the evidentiary guidelines cited by plaintiff to aid in fixing the date of legal publication. The court carefully distinguished the situation presented from that presented in Zuck:

"In Zuck v. Interstate Publishing Corp., supra, the date of the first sale of the magazine in question happened to be the same as the date on which the bulk of that issue went on sale to the public at newsstands throughout the United States. But when these events do not occur simultaneously, what is really determinative is the earliest date on which the libel was substantially and effectively communicated to a meaningful mass of readers — the public for which the publication was intended, not some small segment of it."

234 F.Supp. at 927.

The instant case clearly is not of the Osmers variety. Here defendants do not contend that the legal publication date, triggering the running of the statute of limitations, should be deemed the date of sale of a few advance copies prior to the general release date. Rather, September 7, 1975 is precisely "the same as the date on which the bulk . . . went on sale to the public at newsstands throughout the United States;" indeed, of the total 1,779,990 copies distributed, 1,587,035 copies were available to the public by that date. Since plaintiff's suit was brought more than one year after this date, it is barred by the statute of limitations.

Plaintiff asserts that the single publication rule is inapplicable to claims of violation of Sections 50 and 51 of the New York Civil Rights Law, an invasion of privacy statute, forbidding commercial appropriations of names and likenesses.² He argues that the rule has been applied only in defamation situations, and the difference between the interests sought to be protected by defamation suits and Section 51 actions — reputation and income, respectively — are sufficient to preclude the use of the rule to bar this claim. He thus maintains that each and every publication of the 1,779,990 copies of the October, 1975 issue of OUI is a separate cause of action; since defendants have not proved that all copies were sold earlier than September 22, 1975, summary judgment is inappropriate.

I am not aware of any New York case which settles the question; it is therefore incumbent on me to decide the issue as I think the New York courts would rule....