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ZOLL v. RUDER FINN

January 7, 2004.

MARIKA ZOLL, -against- Plaintiff, RUDER FINN, INC. and Defendants; MARIKA ZOLL, Plaintiff, -against- JORDACHE ENTERPRISES INC. Defendants


The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

The above captioned cases, 01 Civ. 1339 ("Zoll I") and 02 Civ. 3652 ("Zoll"), were consolidated for trial by an Opinion and Order of this Court filed on October 2, 2003. 2003 WL 22283830 (S.D.N.Y., Oct. 2, 2003) (the "October 2 Opinion").*fn1 Together, these two actions concern alleged violations of Plaintiffs rights of privacy and rights of publicity, trespass, and unjust enrichment arising from the production and distribution of two promotional videotapes, Page 2 referred to as Plaintiffs exhibits 21 and 23 in Zoll I, that make use of images of Plaintiff first recorded in 1978.

This is not the first time that this Court has been called upon by the parties to resolve pretrial motions in these cases. Together, parties to these two causes of action have requested and received the full attention of this Court and Magistrate Judge Francis to resolve pre-trial matters on six prior occasions, including one previous motion for reconsideration. See 2003 WL 22283830 (S.D.N.Y., Oct. 2, 2003); 2003 WL 1964054 (S.D.N.Y., April 24, 2003); 2002 WL 31873461 (S.D.N.Y., Dec. 24, 2002); 2002 WL 485733 (S.D.N.Y., March 29, 2002); 2002 WL 226692 (S.D.N.Y., Feb. 14, 2002); 2001 WL 1550943 (S.D.N.Y., Dec. 5, 2001). I have recited the facts underlying this litigation at length in prior decisions. See e.g. 2002 WL 31873461 (S.D.N. Y., Dec. 24, 2002) and 2003 WL 1964054 (S.D.N.Y., April 24, 2003). Judge Francis also provides extensive history in his Report and Recommendation reported at 2001 WL 1550943 (S.D.N.Y., Dec. 5, 2001). I assume familiarity with these and the other cited decisions rendered in this case and move directly to the merits of the present motion.

  Before the Court is Defendants' motion pursuant to Local Rule 6.3 for partial reconsideration of this Court's October 2, 2003 Opinion. Defendants suggest two grounds for their motion. First, they ask the Court to reconsider the statute of limitations analysis in the October 2, 2003 Order on the basis of overlooked facts. Second, Defendants request reconsideration of this Court's choice of law assignment in the October 2, 2003 Opinion. For reasons stated more fully below, Defendants' motion is granted. Page 3

  I. STANDARD OF REVIEW

  "The standard for granting a motion to reconsider under Local Rule 6.3 `is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.' Shrader v. CSX Transportation, Inc., 70 F.3d 255, 256 (2d Cir. 1995). Reconsideration `should not be granted where the moving party seeks solely to relitigate an issue already decided.' Id. Thus, the rule `is to be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court.' Range Road Music, Inc v. Music Sales Corp., 90 F. Supp.2d 390, 391-2 (S.D.N.Y. 2000). Nor may the moving party use such a motion to `advance new facts, issues or arguments not previously presented to the court.' Bank Leumi Trust Co. of New York v. Istim, Inc., 902 F. Supp. 46, 48 (S.D.N.Y. 1995). These limitations are designed to ensure finality and prevent the rule from becoming a vehicle by which a losing party may examine a decision `and then plug[] the gaps of the lost motion with additional matters.' Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988)." Zoll v. Jordache Enterprises Inc. 2003 WL 1964054, at *1-2 (S.D.N.Y., April 24, 2003).

  The present motion is a wholly appropriate use of Local Rule 6.3. In the October 2, 2003 Opinion this Court resolved two standing motions and dramatically altered the landscape of the above captioned litigation. In so doing the Court overlooked two small but critical artifacts created as a consequence of that Opinion. The parties have used the present motion to highlight these issues and afforded the Court: an opportunity to clarify and refine the October 2 Opinion. Page 4

  II. DISCUSSION

 A. Statute of Limitations

  It is useful to reiterate the dates on which these two actions were filed. The complaint in Zoll I, naming only Jordache as a defendant, was filed on February 23, 2001. The complaint in Zoll II, naming both Jordache and Ruder Finn as defendants, was filed on May 13, 2002.

  In their Motion for Reconsideration, Defendants assert that any claims against Ruder Finn relying on New York Civil Rights Law §§ 50 and 51 should be dismissed as time-barred. There are three critical elements to any statute of limitations analysis: the duration of the limitation, the date on which time begins to run, and the date, if any, on which the clock was stopped.

  With respect to the first element, the statute of limitations on right of privacy claims in New York, including New York Civil Rights Law §§ 50 and 51, is one year. See N.Y. CPLR § 215. This is not contested by the parties.

  The second is the critical element in dispute on Defendants' present motion. In the motions decided by this Court's October 2, 2003 Opinion, for which Defendants now seek reconsideration, the Defendants argued that Plaintiffs cause of action in Zoll II was time barred. Defendants' analysis in their original motions asserted, wrongly, that time should have begun to run in April 2001, the date on which Defendants contended that Plaintiffs 23 was distributed to KTLA-TV, not May 16, 2001, when the tape was broadcast on KTLA-TV.*fn2 In their papers on Page 5 that motion neither Plaintiff nor Defendants discussed any earlier broadcasts of this particular tape. The Court, therefore, used May 16, 2001 as the date of first broadcast in its statute of limitations analysis in the October 2 Opinion and concluded that the statutory claims against Ruder Finn in Zoll II were timely.

  There are two tapes at issue on Defendants' present motion, Plaintiffs Exhibits 21 and 23. Plaintiff now concedes that Plaintiffs Exhibit 21 was first broadcast to a public audience on February 15, 2001. See Plaintiffs Memorandum of Law in Opposition to Defendants' Motion for Reconsideration of October 1, 2003 Opinion and Order by Judge Haight ("Plaintiff's Response"), p. 4. Therefore, I find that the one-year ...


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