Everett v. Carvel Corp.

W. Vincent Grady, J. Defendant Westchester-Rockland Newspapers, Inc., moves for summary judgment in this action for invasion of right of privacy. The action is predicated on the publication in the defendant’s newspaper of a photograph of the infant plaintiff eating an ice cream cone with a caption underneath that the infant plaintiff was the 10,000th visitor to attend the children’s ice cream manufacturing tour sponsored by the defendant Carvel Corporation. The complaint alleges that the defendant for its business for advertising purposes and purposes of trade used a portrait or picture of the infant plaintiff together with his name wrongfully and unlawfully. The cause of action for invasion of right of privacy is governed by sections 50 and 51 of the Civil Rights Law. Section 51 provides for exemplary damages where the portrait or picture is used for advertising purposes or for the purposes of trade without written consent. Where a name or picture is used in a newspaper or magazine in connection with an item of news and not a use for purposes of trade within the meaning of the Civil Rights Law, no action will lie for invasion of the right of privacy (Gautier v. Pro-Football, 304 N. Y. 354). The recent Court of Appeals decision in Murray v. New York Mag. Co. (27 N Y 2d 406) is persuasive authority for the granting of summary judgmen to the moving defendant herein. There the Court of Appeals reversed the Appellate Division’s affirmation of Special Term’s denial of summary judgment to the defendant publisher and granted summary judgment where plaintiff was photographed at a Saint Patrick’s Day parade. Here, as in the Murray case, the infant plaintiff was singled out and photographed because his presence constituted official participation in a public event which invited special attention and the use of a photograph of the infant plaintiff is not action [736] able as a use for the purpose of advertising or trade within the prohibition of the statute. Accordingly, the motion for summary judgment is granted.