Springer v. Viking Press

• Decision Date: 14 December 1982
• Citation: 90 A.D.2d 315,457 N.Y.S.2d 246
• Parties: , 8 Media L. Rep. 2613 Lisa SPRINGER, Plaintiff-Respondent-Appellant, v. The VIKING PRESS and Robert Tine, Defendants-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 246

457 N.Y.S.2d 246

90 A.D.2d 315, 8 Media L. Rep. 2613

Lisa SPRINGER, Plaintiff-Respondent-Appellant, v. The VIKING PRESS and Robert Tine, Defendants-Appellants-Respondents.

Supreme Court, Appellate Division,

First Department.

Dec. 14, 1982.

Martin Garbus, New York City, of counsel (Frankfurt, Garbus, Klein & Selz, P.C., New York City), for defendants-appellants-respondents.

Myles C. Cunningham, New York City, of counsel (Post, DeMott & Cunningham, New York City), for plaintiff-respondent-appellant.

Before KUPFERMAN, J.P., and MARKEWICH, SILVERMAN, BLOOM and MILONAS, JJ.

BLOOM, Justice:

This appeal presents us with the issue of whether a fictional depiction of a person contained in a single chapter of a novel is so closely related to plaintiff in the minds of people to whom she is known as to give rise to a cause of action in defamation.

Plaintiff and defendant Tine, the author of the novel in question, attended Columbia University from 1974 to 1978. They met and a close personal relationship developed. In 1978 Tine completed the draft of "State of Grace" a novel dealing with Vatican finances and politics. Plaintiff and Tine discussed the plot during the volume's hatching stage and plaintiff, at Tine's request, reviewed the book for editorial purposes. Indeed, Tine informed plaintiff that he had loosely patterned the relationship between the hero, the papal private secretary, and the heroine, an investigative reporter and the daughter of one of Italy's most influential and powerful industrialists, on the relationship between them.

Plaintiff and Tine terminated their friendship in 1978, apparently with some rancor. In 1980 "State of Grace" was published by defendant, The Viking Press. Chapter 10 of the book, which covers some ten and one-half pages, depicts the origin of and one evening in the relationship between the Italian industrialist, described as "the cossack of Italian business, ruthless and demanding", and his mistress, Lisa Blake. Although brief, the chapter is most explicit about their sexual exploits. Based on some physical similarities between Lisa Blake and plaintiff and their common first name, plaintiff contends that the portrayal of Blake is actually a portrayal of her; and that a number of persons who knew both Tine and her, and of the relationship between them, knew and understood Blake and plaintiff to be one and the same person. Accordingly, she asserts that the depiction of Blake as a "whore" who engages in various types of abnormal sexual activity is defamatory of her. By consequence, she has brought this action to recover for the alleged libel.

The complaint contains seven causes of action. The first two causes are in libel; the third, which is actually in prima facie tort although the phrase is not invoked, alleges that defendants were motivated by malice and ill will and intended to injure plaintiff in her livelihood and seeks treble damages; the fourth cause is bottomed in prima facie tort and seeks punitive damages; the fifth cause asserts an invasion of privacy under the Civil Rights Law; the sixth cause seeks exemplary damages, while the seventh seeks to recover counsel fees. Defendants moved to dismiss the complaint. Plaintiff cross-moved for summary judgment on the issue of liability. Special Term granted the defendant's motion to the extent of dismissing the third, fourth, fifth and sixth causes of action. It denied plaintiff's cross motion for summary judgment. Both sides appeal from that determination.

We deal first with the causes dismissed by Special Term. The third cause seeks treble damages for the malicious conduct of defendants which allegedly resulted in injury to plaintiff. While it is true that, in a proper case, exemplary damages may be awarded as punishment by reason of the aggravated nature of a wrongful act, to prevent repetition by serving as a warning to others and to protect the public (14 N.Y.Jur., Damages, § 176), multiple or treble damages are not allowable in the absence of a statute (14 N.Y.Jur., Damages § 191). No such statute is here involved. As to the gravamen of the cause, it and the fourth cause of action purport to allege a prima facie tort. These two causes are insufficient in law. The concept of prima facie tort finds origin in the principle enunciated by Mr. Justice Holmes in Aikens v. Wisconsin (195 U.S. 194, 204, 25 S.Ct. 3, 5, 49 L.Ed. 154) that: "the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, * * * requires a justification if the defendant is to escape". We have accorded recognition to the principle (ATI, Inc., v. Ruder & Finn, Inc., 42 N.Y.2d 454, 398 N.Y.S.2d 864, 368 N.E.2d 1230; Advance Music Corp., v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401). Initially, it was held that such an action would not lie where a claim based upon a traditional tort would afford complete relief (Morrison v. National Broadcasting Co., Inc., 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572; Ruza v. Ruza, 286 App.Div. 767, 146 N.Y.S.2d 808). However, the rule has since been somewhat relaxed (Board of Education of Farmingdale v. Farmingdale Classroom Teachers, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278). Where, however, complete relief can be accorded under classical tort concepts, prima facie tort may not be pleaded side by side with the pleading of a conventional tort (Belsky v. Lowenthal, 62 A.D.2d 319, 405 N.Y.S.2d 62). Here, there is no claim that complete relief cannot be afforded by application of traditional tort remedies. Moreover, the prima facie tort cannot be established without, at the same time, establishing the classical tort of libel. There is, therefore, no warrant for invocation of the prima facie tort doctrine and the third and fourth causes were properly dismissed.

The fifth cause purports to allege a violation of §§ 50 and 51 of the Civil Rights Law. Section 50 makes it a misdemeanor to use, for purposes of trade or advertising, "the name, portrait or picture of any living person without first having obtained the written consent of such person". Section 51 accords to the person whose name, portrait or picture is so used the right to sue for an injunction to restrain such use and to recover damages, including exemplary damages. Whatever may be the rule elsewhere, in this state there is no right of action for invasion of privacy independently of statute (Arrington v. N.Y. Times, 55 N.Y.2d 433, 449 N.Y.S.2d 941, 434 N.E.2d 1319; Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 403 N.Y.S.2d 218, 374 N.E.2d 129; Flores v. Mosler Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 853; Matter of Dora P., 68 A.D.2d 719, fn. 2, p. 730, 418 N.Y.S.2d 597; Kiss v. County of Putnam, 59 A.D.2d 773, 398 N.Y.S.2d 729; Meeropol v. Nizer, 2 Cir., 560 F.2d 1061). Since "State of Grace" does not use plaintiff's name, portrait or picture, no cause of action under the Civil Rights Law exists.

As to the sixth cause of action, it is unnecessary to do more than point out that a claim for punitive damages cannot stand as a separate cause of action. If the right exists at all it exists merely as "an element of the single total claim for damages on the underlying causes of action" (APS Food Systems, Inc., v. Ward Foods, Inc., 70 A.D.2d 483, 421 N.Y.S.2d 223; see also Ferrucci v. State of New York, 42 A.D.2d 359, 348 N.Y.S.2d 236; Gill v. Montgomery Ward & Co., 284 App.Div. 36, 129 N.Y.S.2d 288).

We come then to the defamation causes which were sustained by Special Term. We begin by noting that "[i]t is for the court to decide whether a publication is capable of the meaning ascribed to it" (Julian v. American Business Consultants, Inc., 2 N.Y.2d 1, 14, 155 N.Y.S.2d 1, 137 N.E.2d 1; see also Drug Research Corp., v. Curtis Publishing Co., 7 N.Y.2d 435, 199 N.Y.S.2d 33, 166 N.E.2d 319; Allen v. Gordon, 86 A.D.2d 514, 446 N.Y.S.2d 48; Lyons v. New American Library, Inc., 78 A.D.2d 723, 432 N.Y.S.2d 536). Where, as here, the work claimed to be defamatory is fictional, the court's task necessarily entails a search for similarities and dissimilarities so as to determine whether a person who knew plaintiff and who has read the book could reasonably conclude that plaintiff was Lisa Blake. Plaintiff asserts that her physical attributes and those of Blake are similar. Like plaintiff, Blake had graduated from college. Additionally,...