Lomax v. New Broadcasting Co.

McNally, J. In this action for damages under sections 50 and 51 of the Civil Bights Law, defendant-appellant appeals from the order to the extent it grants plaintiff summary judgment as to the first and second causes of action and directs an assessment. Defendant-appellant alleges, and we assume for the purpose of the motion, the facts establishing plaintiff’s consent to the use set forth in the dissenting opinion of Mr. Justice Steuer. Nevertheless, section 50 expressly provides and the authorities affirm the need for written consent for the uses therein described. (Adrian v. Unterman, 281 App. Div. 81, 88, affd. 306 N. Y. 771; Roberts v. Conde Nast Pubs., 286 App. Div. 729; Lane v. Woolworth Co., 171 Misc. 66, affd. 256 App. Div. 1065; Hammond v. Crowell Pub. Co., 253 App. Div. 205; Durgom v. Columbia Broadcasting System, 29 Misc 2d 394.) Oral consent is relevant only on the quantum of the recovery and may serve to limit it to a nominal sum. (See Harris v. Gossard Co., 194 App. Div. 688.) Neither oral consent nor estoppel is a complete defense; they are available only as partial defenses in mitigation of damages. (Adrian v. Unterman, supra; Roberts v. Conde Nast Pubs., supra; Hammond v. Crowell Pub. Co., supra; Durgom v. Columbia Broadcasting System, supra.) [230] Prior to March 1, 1959, the effective date of present rule 113 of the Buies of Civil Practice, it was held that issues affecting the amount of damages do not preclude summary judgment. (General Phoenix Corp. v. Cabot, 300 N. Y. 87, 95; 379 Madison Ave. v. Stuyvesant Co., 242 App. Div. 567; International & Ind. Securities Corp. v. Jamaica Jewish Center, 237 App. Div. 738.) Subdivision 3 of present rule 113 resolves any doubt as to the propriety of summary judgment when the sole issues are as to damages. It provides, in part: “ The existence of a triable issue of fact as to the amount or the extent of the damages shall not bar the granting of summary judgment.” The fundamental purpose of the rule is to permit summary judgment and not to deny it where the only remaining issues pertain to the amount or extent of the damages, whether the damages are nominal, compensatory or exemplary. The order should be modified, on the law and on the facts, to the extent of permitting defendant-appellant on the assessment to prove as a partial defense and in mitigation of damages the facts alleged but improperly pleaded as a complete defense, and, as so modified, affirmed, without costs.