Smith v. Long Island Jewish-Hillside Medical Center
| Decision Date | 03 March 1986 |
| Docket Number | JEWISH-HILLSIDE |
| Parties | Gary SMITH, et al., Respondents, v. LONG ISLANDMEDICAL CENTER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Rivkin, Radler, Dunne & Bayh, Garden City (Frank L. Amoroso and Gary D. Centola, of counsel), for appellant.
Jay Randolph Viders, P.C., Carle Place (Matthew E. Radin, of counsel), for respondents.
Before LAZER, J.P., and MANGANO, BRACKEN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for emotional distress, the defendant appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated April 20, 1984, which denied its motion to dismiss the complaint for failure to state a cause of action.
Order reversed, on the law, without costs or disbursements, motion granted, and complaint dismissed.
The plaintiffs are the parents of an infant boy named Brendan who was born on March 16, 1981, admitted to the defendant hospital suffering from a form of leukemia on December 14, 1981, and died on January 29, 1982.
On January 4, 1982, approximately three weeks prior to the infant's death, an article appeared in Newsday, which was read by the plaintiffs. In that article, an unidentified nine-month old infant in the defendant's pediatric intensive care unit was described as "doomed", suffering from "incurable" leukemia, and "beyond help". Although the article did not identify the infant by name, the plaintiffs recognized the child referred to in the article as their son Brendan, and apparently learned, for the first time, the true nature of their child's condition.
In October 1983, approximately 21 months after the infant's death, the plaintiffs saw photographs of their child displayed in the defendant hospital and in a shopping center as part of a campaign advertising the opening of defendant's new children's hospital. The plaintiffs thereafter commenced the instant action against the defendant hospital, seeking injunctive relief with respect to the photograph based on the "unlawful use and distribution [of the photographs] for advertising purposes" and compensatory and punitive damages based on the defendant hospital's improper use of the photograph and improper disclosure of the infant's medical condition to the press.
The defendant thereafter moved to dismiss the complaint. In support of the motion, the defendant argued that the publication of the infant's photograph for advertising purposes as alleged in the complaint, constituted a violation of the infant's right to privacy pursuant to the New York State Civil Rights Law and that this cause of action, which was "purely personal", did not survive the infant's death. In addition, the defendant argued that the plaintiffs could not recover for mental and emotional injuries resulting from their viewing of their deceased child's photograph.
Special Term held, and correctly so, that the complaint failed to state a cause of action under Civil Rights Law §§ 50, 51 because a cause of action under those statutes, based upon the invasion of the infant's privacy, belonged to the infant alone and was extinguished upon the infant's death (see, Rosemont Enterprises v. Random House, 58 Misc.2d 1, 294 N.Y.S.2d 122, affd. 32 A.D.2d 892, 301 N.Y.S.2d 948; Matter of Rome Sentinel Co. v. Boustedt, 43 Misc.2d 598, 252 N.Y.S.2d 10). However, Special Term was of the view that the complaint contained "sufficient allegations to establish causes of action against defendant for negligent and/or intentional infliction of emotional distress" based on the defendant's disclosure to Newsday of the nature of the infant's physical condition and the publication of the infant's photograph. Accordingly, Special Term denied the defendant's motion to dismiss the complaint, stating that:
"A motion to dismiss for failure to...
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