Southeast Bank, N.A. v. Lawrence

• Decision Date: 26 November 1985
• Citation: 498 N.Y.S.2d 775,489 N.E.2d 744,66 N.Y.2d 910
• Parties: , 489 N.E.2d 744, 54 USLW 2344, 227 U.S.P.Q. 1054, 12 Media L. Rep. 1430 SOUTHEAST BANK, N.A., as Personal Representative of the Estate of Tennessee Williams, Deceased, Respondent, v. Jack LAWRENCE et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 775

498 N.Y.S.2d 775

66 N.Y.2d 910, 489 N.E.2d 744, 54

USLW 2344, 227 U.S.P.Q. 1054,

12 Media L. Rep. 1430

SOUTHEAST BANK, N.A., as Personal Representative of the Estate of Tennessee Williams, Deceased, Respondent, v. Jack LAWRENCE et al., Appellants.

Court of Appeals of New York.

Nov. 26, 1985.

David Blasband, Nancy F. Wechsler and Robert C. Harris, New York City, for appellants.

Leonard M. Marks, Jane G. Stevens and Beth M. Schillinger, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 104 A.D.2d 213, 483 N.Y.S.2d 218, should be reversed, without costs, complaint dismissed, preliminary injunction vacated, and question certified answered in the negative.

Plaintiff, a Florida-based bank acting as personal representative of the estate of the late playwright Tennessee Williams, a Florida domiciliary at the time of his death, commenced this action to enjoin defendants, the owners of a theatre located on West 48th Street in Manhattan, from renaming the theatre the "Tennessee Williams." In its complaint, plaintiff alleges, among other things, that the renaming of the theatre without its consent violates the decedent's descendible right of publicity.

Special Term granted plaintiff's motion for a preliminary injunction and denied defendant's cross motion to dismiss the complaint. That order has been affirmed by the Appellate Division, First Department, which granted leave to appeal on a certified question. We now reverse.

The parties have assumed that the substantive law of New York is dispositive of the appeal and have addressed Florida law only tangentially. Both Special Term and the Appellate Division decided the case under what they believed to be New York law. In doing so, all have overlooked the applicable choice of law principle (cf. James v. Powell, 19 N.Y.2d 249, 256, 279 N.Y.S.2d 10, 225 N.E.2d 741), followed by both New York and Florida, that questions concerning personal property rights are to be determined by reference to the substantive law of the decedent's domicile (EPTL 3-5.1 Matter of Fabbri, 2 N.Y.2d 236, 239, 159 N.Y.S.2d 184, 140 N.E.2d 269; Quintana v. Ordono, 195 So.2d 577 cert. discharged 202 So.2d 178 In re Tim's Estate, 161 So.2d 40 decree quashed on other grounds 180 So.2d 161 judgment conformed to 180 So.2d 502 cert. denied sub nom. Rudawski v. Florida, 384 U.S. 952, 86 S.Ct. 1569, 16 L.Ed.2d 549; see also, Restatement of Conflict of Laws § 263; Weintraub, Conflict of Laws §§ 2.13, 8.25 ). For choice of law purposes, at least, rights of publicity constitute personalty (see, Acme Circus Operating Co. v. Kuperstock, 711 F.2d 1538, 1541; Groucho Marx Prods. v. Day & Night Co., 689 F.2d 317; Factors Etc. v. Pro...