Caesar v. Chemical Bank

—Order entered May 13, 1983, Supreme Court, New York County (Norman C. Ryp, J.), which, inter alia, certified this as a class action and granted plaintiff’s motion for partial summary judgment on the first cause of action as to liability, is affirmed, with costs. Under section 50 of the Civil Rights Law, the use of a living person’s picture for advertising purposes without first obtaining that person’s written consent constitutes a misdemeanor. Section 51 permits an individual to maintain an equitable action to restrain such use and allows a jury to award exemplary as well as actual damages. The statute admits of no exceptions, nor have the courts imputed any in “special” circumstances, such as within the employer-employee relationship, as here. (Cf. Shields v Gross, 88 AD2d 846, 851 [Carro, J., dissenting], mod 58 NY2d 338; Lomax v New Broadcasting Co., 18 AD2d 229.) Although we are not completely unsympathetic to defendant’s claim that plaintiff(s) participated in the photo session voluntarily and with complete understanding of the use intended for the photographs, an allegation of oral consent is not a defense to a civil rights privacy action, but merely a relevant factor as to the recovery of damages. (Lomax v New Broadcasting Co., supra.) In other words, while we find much sense in Justice Steuer’s dissenting observation that “[t]o stress the writing and ignore the [oral] consent is to effectuate a fraud” (18 AD2d, at p 231), the solution is legislative, not judicial. Concur — Sullivan, Ross and Carro, JJ.