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))