Landwehrle v. Bianchi
| Decision Date | 27 March 2023 |
| Docket Number | Index No. 155395/2020,Motion Seq. No. 004 |
| Citation | 2023 NY Slip Op 30926 (U) |
| Parties | VINCENT LANDWEHRLE, Plaintiff, v. TOM BIANCHI, VOGT GALLERY LLC, doing business as JOHANNES VOGT GALLERY, and DAMIANI EDITORE, Defendants. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
JOHN J. KELLEY J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 102, 103, 104, 105, 106, 107, 108, 109, 110 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122 were read on this motion to/for DISMISSAL.
In this action, inter alia, to recover damages for defamation, negligence, negligent infliction of emotional distress, common-law invasion of privacy under New Jersey and California law, and pursuant to Civil Rights Law §§ 50, 51, and 52-b, 18 USC §2252A, and N.J. Stat. 2A:58D-1, the defendant Damiani Editore (Damiani) moves pursuant to CPLR 3211(a)(7) to dismiss the first through seventh causes of action insofar as asserted against it for failure to state a cause of action. Damiani also moves to dismiss the first through seventh causes of action against him on the grounds that the action is time-barred (see CPLR 3211[a][5]) and based upon a defense founded upon documentary evidence (see CPLR 3211 [a][1 ]). The plaintiff opposes the motion. The motion is granted to the extent that the fourth, sixth, and seventh causes of action, and so much of the second cause of action as is premised upon Restatement 2d of Torts, §§ 652C and 652D, are dismissed insofar as asserted against Damiani. The motion is otherwise denied.
The facts relevant to this dispute were set forth in great detail in the court's order dated June 24, 2023, which determined the motion of the defendant Tom Bianchi to dismiss the complaint insofar as asserted against him. In short, Damiani is an Italian corporation that published a glossy art book of historical photographs taken by Bianchi in the 1970s and 1980s. That book included several nude photos of the plaintiff, some of which were taken when he was 17 years old, and others after he was 18 years old.
When assessing the adequacy of a pleading in the context of a motion to dismiss under CPLR 3211(a)(7), the court's role is "to determine whether [the] pleadings state a cause of action" (511 IV. 232nd Owners Corp, v Jennifer Realty Co., 98 N.Y.2d 144, 151-152 [2002]). To determine whether a claim adequately states a cause of action, the court must "liberally construe" it, accept the facts alleged in it as true, accord it "the benefit of every possible favorable inference" (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881 [2013]; Simkin v Blank, 19 N.Y.3d 46 [2012]), and determine only whether the facts, as alleged, fit within any cognizable legal theory (see Hurrell-Harring v State of New York, 15 N.Y.3d 8 [2010]; Leon v Martinez, 84 N.Y.2d 83 [1994]; Weil, Gotshal &Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267 [1st Dept 2004]; CPLR 3026). "The motion must be denied if from the pleading's four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (511 W. 232nd Owners Corp., v Jennifer Realty Co., 98 N.Y.2d at 152 [internal quotation marks omitted]; see Leon v Martinez, 84 N.Y.2d at 87-88; Guggenheimer v Ginzburg, 43 N.Y.2d 268 [1977]).
Damani contended that the plaintiff cannot assert this cause of action because the issue, as addressed by the New Jersey statute, conflicts with the public policy of New York, as articulated in Civil Rights Law § 52-b. In particular, Damani argued that Civil Rights Law § 52-b requires the plaintiff to show that the defendant acted with the intent to cause the harm proscribed, whereas the New Jersey statute has no such requirement. Thus, according to Damiani, the plaintiff is precluded from asserting a cause of action to recover under N.J. Stat. 2A:58D-1, and is relegated to a remedy pursuant to Civil Rights Law §52-b, which includes the requirement that a plaintiff prove and plead intent.
(emphasis added). Thus, Civil Rights Law §52-b(8) allows for concurrent causes of action, regardless of whether another statute does or does not include an intent requirement. Moreover, this court has already decided, in its June 24, 2023 order, that the plaintiff can assert claims under the New Jersey statute in this action. Hence, this court does not recognize any conflict between the New York and New Jersey statutes, as asserted by Damiani.
Damiani also contended that the plaintiff cannot assert this cause of action because doing so would require this court to adjudicate Damiani "notionally" as also being in violation of the criminal provisions that are incorporated into the New Jersey civil statute. Damiani maintained that the plaintiff is entitled to relief under N.J. Stat. 2A:58D-1 only if he can prove that Damiani acted "in violation of section 1 of P.L. 2003, c. 206 (C.2C:14-9)," a section that constitutes a provision of the New Jersey Code of Criminal Justice (see N.J. Stat. § 2C:14-9). The New Jersey civil statute at issue, however, expressly states that "[a] conviction of a violation of section 1 of P.L. 2003, c. 206 (C.2C:14-9) shall not be a prerequisite for a civil action brought pursuant to this section" (N.J. Stat. 2A:58D-1). Nonetheless, Damiani argued that, because N.J. Stat. § 2C:14-9 is incorporated into N.J. Stat. 2A:58D-1, it would still require this court to decide a criminal issue in a civil action. This court wholly disagrees with that contention, given the explicit language of N.J. Stat. 2A:58D-1 that a criminal conviction shall not be a prerequisite for a civil action brought under the section. There is no other way of analyzing and interpreting such unequivocal language, even in a "notional" sense, as Damiani phrases it. Moreover, this court is limited to granting an award of civil damages only as permitted pursuant to N.J. Stat. 2A:58D-1(c), should it reach that juncture. In any event, the plaintiff is not asserting claims under New Jersey criminal law.
Moreover, inasmuch as the plaintiff seeks to recover damages pursuant to a civil cause of action created by statute, he need only prove his claim by a preponderance of the evidence (see Liberty Mut. Ins. Co. v Land, 186 N.J. 163, 175-177, 892 A.2d 1240, 1247-1248 [2006]), where a New Jersey prosecutor would be obligated to prove criminal liability beyond a reasonable doubt (see State v Melvin, 248 N.J. 321, 342, 258 A.3d 1075, 1087-1088 [2021]). In light of the differing standards of proof, even a determination of civil liability under N.J. Stat. 2A:58D-1 would not collaterally estop Damiani from disclaiming criminal liability, as collateral estoppel does not lie where a subsequent legal proceeding requires a higher burden of proof than the initial legal proceeding (see Pivnick v Beck, 326 N.J. Super 474, 487-488, 741 A.2d 655, 663 [App Div 1999]).
Thus, this court need not explore or enforce any criminal laws whatsoever. Hence, the plaintiff may assert, in a New York court, the civil cause of action created by N.J. Stat. 2A:58D-1 (c) under New Jersey law.
The plaintiff's second cause of action, while titled "Invasion of Privacy Intrusion Upon Seclusion," articulates elements of the causes of action for three forms of invasion of privacy under New Jersey common law. In particular, the plaintiff pleaded that the defendants, including Damiani, violated his rights to be free from intrusion upon seclusion, publicity given to private life, and appropriation of name or likeness (see Restatement 2d of Torts, § 652B-D).
Damiani contended that the intrusion must entail either invasion of the plaintiff's physical space or intrusion upon the plaintiffs expectation of privacy by means of surveillance, deception, or other surreptitious means. Damiani further argued that, since it never had any contact with the plaintiff, it did not intrude upon his physical space or expectation of privacy by an act of surveillance or some other surreptitious conduct. Moreover, Damiani argued that its publication of Bianchi's book does not fall under any of the examples provided in comment (b...
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