Polimeni v. Asbestos Lead & Hazardous Waste Laborers' Local 78

• Decision Date: 09 November 2011
• Parties: Vincent POLIMENI, et al., appellants,v.ASBESTOS LEAD & HAZARDOUS WASTE LABORERS' LOCAL 78, respondent.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 826

932 N.Y.S.2d 350

2011 N.Y. Slip Op. 08135

Vincent POLIMENI, et al., appellants,

v.ASBESTOS LEAD & HAZARDOUS WASTE LABORERS' LOCAL 78, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2011.

OPINION TEXT STARTS HEREStephan Garber, Garden City, N.Y., for appellants.Cohen, Weiss and Simon LLP, New York, N.Y. (Joseph J. Vitale and Bruce S. Levine of counsel), for respondent.

In an action, inter alia, to recover damages for defamation, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered September 22, 2010, as granted those branches of the defendant's motion pursuant to CPLR 3211(a)(7) which were to dismiss the first, second, and fourth causes of action insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

As the Supreme Court correctly concluded, the first cause of action to recover damages pursuant to Civil Rights Law §§ 50 and 51 for invasion of the plaintiff Vincent Polimeni's right of privacy fails to state a cause of action upon which relief can be granted, as the flyer on which Polimeni's name and photograph appeared was not used for advertising or trade purposes ( see Kane v. Orange County Publs., 232 A.D.2d 526, 526–527, 649 N.Y.S.2d 23; cf. Beverley v. Choices Women's Med. Ctr., 78 N.Y.2d 745, 751, 579 N.Y.S.2d 637, 587 N.E.2d 275). Moreover, the flyer falls within the public interest exception to Civil Rights Law §§ 50 and 51 ( see Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d 436, 441, 706 N.Y.S.2d 52, 727 N.E.2d 549; Freihofer v. Hearst Corp., 65 N.Y.2d 135, 141, 490 N.Y.S.2d 735, 480 N.E.2d 349; Walter v. NBC Tel. Network, Inc., 27 A.D.3d 1069, 1070–1071, 811 N.Y.S.2d 521; Creel v. Crown Publs., 115 A.D.2d 414, 415–416, 496 N.Y.S.2d 219).

The Supreme Court also properly granted that branch of the defendant's motion which was to dismiss the second cause of action to recover damages for defamation of Polimeni's character. CPLR 3016(a) requires that the allegedly defamatory material be set forth in the complaint. Although the flyer was annexed to the complaint ( see Pappalardo v. Westchester Rockland Newspapers, 101 A.D.2d 830, 475 N.Y.S.2d 487, affd. 64 N.Y.2d 862, 487 N.Y.S.2d 325, 476 N.E.2d 651), a perusal of the flyer does not reveal the allegedly defamatory material and, thus, dismissal of that cause of action is required ( see Black–Kelly v. Marley, 83 A.D.3d 981, 921 N.Y.S.2d 568; Hausch v....