This case grows out of the aftermath of a lawsuit in which Brooke Shields, the well-known model and actress, had attempted to obtain an injunction to prevent Garry Gross, a professional photographer, from printing or selling, for the purposes of trade or advertising, certain nude photographs taken of her when she was 10 years old, for which her mother, as guardian, had signed a release. Having initially obtained a preliminary injunction, but having then ultimately lost her lawsuit, Gross turned around and sued Shields for $750,000 for the damages allegedly sustained by reason of "the wrongful forms of injunctive relief". Defendant Shields has moved to dismiss the current complaint as a matter of law. PROCEDURAL HISTORY
Shields originally brought the action for injunction on May 19, 1981, alleging that use of the photographs by Gross violated her rights of privacy under Civil Rights Law §§ 50 and 51. The court, per Acting Justice Beverly S. Cohen, signed an order to show cause containing a temporary restraining order barring Gross from sale or use of the pictures pending hearing of the motion, and ultimately, by agreement, until determination of the motion. Application to vacate the temporary restraining order was twice denied and on September 23, 1981 a preliminary injunction, on grounds of "irreparable injury" was granted by Mr. Justice Helman.
On November 10, 1981, after a plenary non-jury trial, this court (Greenfield, J.) dismissed Shields' complaint and application for a permanent injunction, but restrained Gross from using or permitting the use of the photographs in pornographic magazines or publications whose appeal was prurient in nature, and charged him with the responsibility for preventing any unlicensed use of the photographs. The court granted Shields a continuing 14-day stay pending appeal to the Appellate Division.
Shields appealed, and the Appellate Division modified the judgment entered at Trial Term by permanently enjoining Gross from using the photographs for purposes of advertising or trade. (Shields v Gross, 88 A.D.2d 846.) The Court of Appeals however modified the Appellate Division decision by reinstating Trial Term's order (Shields v Gross, 58 N.Y.2d 388), holding that Shields' mother, as guardian, had signed an effective release under the Civil Rights Law, binding on her minor daughter, and that she had no common-law rights, but was restricted to the explicit terms of the privacy statute.
In initially obtaining the preliminary injunction, Shields posted a $5,000 undertaking. The Appellate Division extended the preliminary injunction upon the posting of an additional $45,000 undertaking. While the appeal to the Court of Appeals was pending, Shields moved to discharge the $5,000 and $45,000 undertakings. The motion was granted on September 29, 1982 (Altman, J.). The Appellate Division affirmed the discharge of the undertakings on March 31, 1983 and the Court of Appeals denied leave to appeal on June 2, 1983.
Subsequent to the Court of Appeals decision (on Mar. 29, 1983) determining that Shields was not entitled to a permanent injunction as to the pictures for purposes of advertising or trade, Shields obtained a third preliminary injunction on April 5, 1983 (Greenfield, J.) pending reargument to the Court of Appeals, in which she posted a $30,000 undertaking to compensate Gross for the possible diminished value of the sale of the pictures to newspapers on the ground that the value of the photographs would decrease in accordance with the time that lapsed between the newsworthy event (i.e., the Court of Appeals decision) and the time of publication. The Court of Appeals denied leave to reargue on April 29, 1983 (Shields v Gross, 59 N.Y.2d 762).
In December 1981 having won on the trial but still being prevented from selling or exploiting the now-celebrated photographs, Gross commenced an action against Shields for malicious prosecution in having improperly obtained a temporary restraining order and a preliminary injunction from the Supreme Court. That action was dismissed on June 30, 1982 (Greenfield, J.), on the ground that Gross could not, as a matter of law, establish malice by Shields in obtaining injunctive relief.
In this second action, Gross seeks legal fees, lost income, costs and disbursements incurred by him as a result of the injunctive relief obtained by Shields, seeking damages in the sum of $750,000.
SHIELDS' MOTION TO DISMISS
Shields moves to dismiss the complaint pursuant to CPLR 3211 (a) (1), (7). Shields contends that this action is barred by res judicata and that Gross' damages are limited to the undertakings posted to obtain the injunctive relief.
At common law, there was no liability for damages sustained by a defendant if an injunction was erroneously granted unless the injunction was obtained maliciously (City of Yonkers v Federal Sugar Refining Co., 221 NY 206, 208). The reason for this prohibition was one of public policy. "[The] free pursuit of remedies in the courts should not be obstructed by the menace of liability for innocent mistake." (City of Yonkers v Federal Sugar Refining Co., supra, at p 209.)
Since the enactment of civil codes in this State, cases determining the liability of a plaintiff for damages sustained by a defendant as a result of a wrongful injunction have consistently held that a defendant may recover only on the undertaking or on the basis of an action for malicious prosecution. (Mark v Hyatt, 135 NY 306; Palmer v Foley, 71 NY 106; ...