You are here: / / PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE...
,

PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Mazzarelli, determined that the state’s use of claimant’s image in a public service ad informing HIV positive people of their rights constituted defamation per se, but not standard defamation. The First Department further determined the Civil Rights Law (privacy violation) causes of action did not apply to the state, which did not use the image for commercial purposes. Claimant alleged she suffered “mental anguish” as a result of the publication of her image and argued HIV constitutes a “loathsome disease” because of the way the condition is perceived by portions of the public:

​

… [P]laintiff must prove damage to (his, her) reputation or standing in the community, or damages such as personal humiliation, mental anguish and suffering” (PJI 3:29B). The use of the word “or” clearly indicates that the state of the law in New York is such that mental anguish is an alternative to reputational injury in establishing damages in a defamation case. * * *

… [B]ecause claimant alleges that she was the victim of defamation per se, we must decide whether she is indeed entitled to recover under that theory. A defamation plaintiff must plead special damages unless the defamation falls into any one of four per se categories: (1) statements charging the plaintiff with a serious crime; (2) statements that tend to injure the plaintiff in her trade, business or profession; (3) statements that impute to the plaintiff a “loathsome disease”; and (4) statements that impute unchastity to a woman… . Claimant purports to qualify under the “loathsome disease” category. …  Claimant, … while taking issue with the archaic term “loathsome,” argues that it is legally operative and historically applicable in the case of medical conditions such as HIV that are communicable and can still, in claimant’s opinion, result in societal ostracism. Nolan v State of New York, 2018 NY Slip Op 00269, First Dept 1-16-18

DEFAMATION (PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/HIV (DEFAMATION, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/IMAGES (DEFAMATION, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/CIVIL RIGHTS LAW (PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))/PRIVACY RIGHTS (CIVIL RIGHTS LAW, PHOTOGRAPHS, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))/PHOTOGRAPHS (CIVIL RIGHTS LAW, PHOTOGRAPHS, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))

You might also like
To Demonstrate “Defamation by Implication” Where the Factual Statements Are Substantially True, It Must Be Shown the Communication as a Whole Imparts a Defamatory Inference and the Author Intended or Endorsed the Defamatory Inference
​DEFENDANT DAWSON FELL ON PLAINTIFF DURING A DANCE HOSTED BY DEFENDANT NON-PROFIT, LENOX HILL; PLAINTIFF SUED LENOX HILL ALLEGING NEGLIGENT SUPERVISION OF THE DANCE; LENOX HILL DID NOT OWE A DUTY OF CARE TO PLAINTIFF AND DID NOT PROXIMATELY CAUSE PLAINTIFF’S INJURY (FIRST DEPT).
PROPERTY OWNERS WERE AWARE THE SIDEWALK IN FRONT OF THE RESTAURANT HAD BEEN HOSED DOWN BY RESTAURANT EMPLOYEES ON A COLD DAY; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS ICY-SIDEWALK SLIP AND FALL CASE (FIRST DEPT).
THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIES RETROACTIVELY; THE DEFENDANT MORTGAGE COMPANY IS ESTOPPED BY CPLR 213(4)(A) FROM ASSERTING THE STATUTE OF LIMITATIONS FOR A FORECLOSURE HAS NOT EXPIRED; PLAINTIFF’S COMPLAINT SEEKING DISCHARGE AND CANCELLATION OF THE MORTGAGE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
NUISANCE COUNTERCLAIM BASED UPON PLAINTIFF’S PLAYING PIANO IN HER CONDOMINIUM SHOULD HAVE BEEN DISMISSED, NO SHOWING THE SOUND LEVEL WAS UNREASONABLE (FIRST DEPT).
PLAINTIFF’S VERDICT IN THIS SUBWAY ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE; PLAINTIFF WAS STRUCK BY A TRAIN AND ALLEGED THE ALLOWED SPEED FOR ENTERING A STATION WAS TOO HIGH; DEFENDANT TRANSIT AUTHORITY SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT SPEED STUDIES HAD BEEN CONDUCTED IN SUPPORT OF THE QUALIFIED IMMUNITY DEFENSE (FIRST DEPT).
HEARSAY STATEMENTS IN AN UNCERTIFIED, UNAUTHENTICATED REPORT FOR WHICH NO FOUNDATION WAS PROVIDED DID NOT CREATE AN ISSUE OF FACT (FIRST DEPT).
TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE... PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1)...