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Nolan v. State

Supreme Court of New York, First Department

January 16, 2018

Avril Nolan, Claimant-Respondent,
v.
The State of New York, Defendant-Appellant.

          Eric T. Schneiderman, Attorney General, New York (Eric Del Pozo and Anisha S. Dasgupta of counsel), for appellant.

          Lloyd Patel LLP, New York (Erin Lloyd of counsel), for respondent.

          Dianne T. Renwick, J.P., Sallie Manzanet-Daniels, Angela M. Mazzarelli, Marcy L. Kahn, Peter H. Moulton, JJ.

          MAZZARELLI, J.

         Defendant appeals from the order of the Court of Claims of the State of New York (Thomas H. Scuccimarra, J.), entered October 8, 2015, which, to the extent appealed from as limited by the briefs, granted claimant's motion for summary judgment on the issue of liability on her defamation per se and Civil Rights Law claims, and denied defendant's cross motion for partial summary judgment dismissing the Civil Rights Law claims.

         In this appeal we confront two separate issues arising out of a claim for defamation per se. First, we must determine whether one making such a claim must prove actual harm to her reputation or whether she must establish merely that she has been actually injured although her reputation remains intact. In addition, we are confronted with the question whether an imputation of HIV qualifies for the "loathsome disease" category of written or spoken material that constitutes defamation per se, relieving the target of the statement from having to prove special damages. The Court of Appeals has endorsed the definition of a "loathsome disease" as one that is "contagious [or] attributed in any way to socially repugnant conduct" (Golub v Enquirer/Star Group, 89 N.Y.2d 1074, 1077 [1997], quoting Chuy v Philadelphia Eagles Football Club, 595 F.2d 1265, 1281 [3d Cir 1979]). We must decide whether, given modern societal views towards those with HIV or AIDS, and given the context of the specific statement at issue here, which was sympathetic towards those with the virus, it was reasonable for the court to characterize it as "loathsome."

         The statement at issue was a print advertisement conceived by the New York State Division of Human Rights (DHR). The ad was part of a broad-based educational campaign that DHR had launched in conjunction with the New York State Department of Health's (DOH) AIDS Institute. DOH provided funding to DHR to run public service announcements in local media apprising HIV-positive New Yorkers of their right not to be discriminated against. DHR's idea for the ad was to display a photograph of a person next to copy reading, "I AM POSITIVE()" and "I HAVE RIGHTS, " and stating, in smaller print, "People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights? Contact the NYS Division of Human Rights."

         The person appearing in the ad was claimant. She had posed for the photograph two years earlier in connection with an online magazine article about New Yorkers' music interests. Unbeknownst to claimant, the person who took the photograph for the magazine sold it to Getty Images, which compiles and sells stock images. DHR licensed the image from Getty. While the email receipt DHR received from Getty stated that the model in the image had signed a release, an assurance also given to DHR over the telephone, it is undisputed that claimant had not signed a release or even given the photographer permission to sell the photo. Further, the license agreement expressly prohibited "defamatory or otherwise unlawful use" of the photo and barred any use "that would be unflattering or controversial to a reasonable person, " unless accompanied by a disclaimer that the photo was "used for illustrative purposes" and that the person depicted was a model. No such disclaimer appeared in the ad at issue.

         The ad was published in three local general interest newspapers and as a banner ad on three websites. Upon learning of the ad from a friend on the first day it ran, claimant contacted the photographer, who contacted DHR on her behalf and requested that the ad be pulled from circulation. DHR's deputy commissioner for external affairs agreed to pull the spots and to not use the photograph in future advertisements. The next morning, DHR pulled the ad from all outlets.

         Claimant filed a verified claim against the State asserting causes of action for defamation, defamation per se, and violation of Civil Rights Law §§ 50 and 51, which bar the nonconsensual use of a person's image for commercial purposes [1]. The claim alleged that the ad caused impairment of claimant's reputation, as well as "emotional distress" and "anguish, " and sought $1.5 million in damages. After the completion of discovery claimant moved for summary judgment, arguing that the undisputed material facts established that DHR defamed her by recklessly publishing the ad, and that its behavior constituted defamation per se because the ads indicated that she suffered from a "loathsome disease." She further argued that, by using her image in an advertisement without her written consent, DHR violated the Civil Rights Law.

         The State opposed claimant's motion and cross-moved for partial summary judgment dismissing the Civil Rights Law claim. It argued that claimant's general defamation cause of action failed because she was unable to show an actual loss of something of economic or pecuniary value. In addition, the State contended that claimant should not be awarded summary judgment on her defamation per se claim, because HIV was not a "loathsome disease, " and because she failed to establish that DHR acted with actual malice or that she suffered reputational harm. The State further argued that summary judgment on the Civil Rights Law claim must be denied because DHR was not a commercial enterprise engaged in trade when it published the public service announcement in which claimant was featured, and that partial summary judgment dismissing the claim should be granted. Claimant countered with the argument that the very fact that DHR saw the need to launch an antidiscrimination campaign for HIV- positive people showed that much of society continues to view such individuals with suspicion and judgment, if not contempt, ridicule, aversion, or disgrace, and so HIV qualified as a "loathsome disease." She disputed the State's argument that she had to show damage to her reputation. With respect to the Civil Rights Law claim, claimant responded that the ad was a paid-for advertisement intended to promote the use of DHR's services, and so the State could not hide behind the public service nature of the ad.

         The court granted claimant's motion on the defamation per se and Civil Rights Law claims, and denied the State's motion for partial summary judgment dismissing the Civil Rights Law claims. Initially, the court found it self-evident that DHR was negligent based on the evidence adduced in discovery showing that the person involved in the purchase of the stock image had failed to read the license agreement, that no one had thought through the implications of using the image in the context in which it would be used, and that no one had sought legal advice. However, finding that no special damages were apparent based on the evidence showing that claimant only suffered some discomfort and embarrassment, the court held that she was not entitled to summary judgment on the standard defamation causes of action asserted in the claim.

         The court found that claimant was entitled to summary judgment on the defamation per se claims, because "[n]ot just sexually transmitted diseases fall under the loathsome disease category, but any disease that arouses some intense disgust in society, in part because it is viewed as incurable or chronic." The court noted that "[i]t would be hoped that an indication that someone... has been diagnosed as HIV positive would not be viewed as indicative of some failure of moral fiber, or of some communicable danger, [but] our society is not so advanced." Given the above, the court concluded that from the perspective of the average person, the defamatory content clearly subjected claimant "to public contempt, ridicule, aversion or disgrace and constitutes defamation per se."

         Finally, the court found that claimant demonstrated her entitlement to judgment as a matter of law on the Civil Rights Law causes of action, because she established that her photograph was used, within the State of New York, ...


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