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PLAINTIFF’S ACTION WAS NOT FRIVOLOUS WITHIN THE MEANING OF 42 USC 1988, PREVAILING PARTY SHOULD NOT HAVE BEEN AWARDED ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the award of attorney’s fees to the prevailing party pursuant to 42 USC 1988 based upon the finding that plaintiff’s action was frivolous should not have been granted. Plaintiff sued the county claiming that her employment was terminated in retaliation for her complaints about the special education provided to her son:

The court granted the motion on the basis of 42 USC § 1988, which authorizes the award of attorneys’ fees to a prevailing defendant “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation” … . Nonetheless, it remains ” very rare [for] victorious defendants in civil rights cases [to] recover attorneys’ fees’ “… .

Here, in determining that plaintiff’s claim against Whittemore [the county personnel director] was frivolous, the court relied on plaintiff’s testimony during her deposition. During her deposition, however, plaintiff specifically stated that the factual basis for her claim against Whittemore was that he was the personnel director and his conduct caused injury to her because he allowed someone else to be placed in the position to which she sought to be reinstated. Contrary to the court’s determination, any inability of plaintiff to provide further elaboration during her deposition, which was taken early in the litigation shortly after commencement of the action, did not establish that her claim against Whittemore was frivolous. Moreover, a claim may not “be deemed groundless where [, as here,] the plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him [or her] as a matter of law” … . Although the civil rights allegations against Whittemore may have been weak, we cannot deem plaintiff’s claim “frivolous, unreasonable, or without foundation” … . Calhoun v County of Herkimer, 2019 NY Slip Op 01025, Fourth Dept 2-8-19

 

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ALTHOUGH THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF ON A SUBWAY FOR A TRANSIT VIOLATION, THE CONCURRENCE CALLED INTO QUESTION THE ‘TRANSIT DATABASE’ WHICH PROBABLY INCLUDES PERSONS WHOSE CRIMINAL CHARGES WERE SEALED AND DISMISSED, THE DATABASE DOES NOT PROVIDE A DISTINCT BASIS FOR ARREST (FIRST DEPT).

The First Department, over a concurrence, determined that there was probable cause to arrest the plaintiff based on the transit offense of passing between two subway cars on a moving train. Because there was probable cause, the majority did not reach the issue of the fairness or constitutionality of a so-called “transit database” which encompasses so-called “transit recidivists.” The concurrence made it clear that plaintiff’s designation as a “transit recidivist” did not provide the police with a separate basis to arrest plaintiff:

From the concurrence:

It must be said that plaintiff’s designation as a transit recidivist did not give the officers a separate basis to arrest plaintiff … . The definition of “transit recidivist” at the time of plaintiff’s arrest encompassed not only persons convicted of crimes, but those with prior arrests in the transit system or prior felony arrests within New York City … . This overbroad classification subverted the presumption of innocence and likely violated state sealing laws. …

… [T]he database was likely contaminated by sealed arrests and summons histories and, as such, ran afoul of provisions of the Criminal Procedure Law that require that the records of any criminal prosecution terminating in a person’s favor or by way of noncriminal conviction be sealed …  Statistics … indicate that in 2016 alone, over 50% of all criminal cases arraigned in New York City Criminal Court were terminated in favor of the accused, and accordingly entitled to sealing … . From 2007 through 2015 an average of 23% of all criminal summonses were dismissed for facial insufficiency … . Unless otherwise permitted by law, no one, including a private or public agency, can access a sealed record, except with a court order upon a showing that justice so requires.

The presence of arrest and summons data in the database also undercut the presumption of innocence insofar as persons were threatened with punishment on account of allegations that may have been unsubstantiated or dismissed.

…[T]his is not the first NYPD database to have included unlawfully broad data. NYPD previously recorded the name of every individual stopped and frisked as recently as 2010, until forced by a federal lawsuit to discontinue the practice.

Finally, there is little doubt that the “transit recidivist” database had a disproportionately negative effect on black and Hispanic communities, perpetuating this City’s history of overpolicing communities of color. Vargas v City of New York, 2019 NY Slip Op 00370, First Dept 1-22-19

 

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SUPREME COURT SHOULD NOT HAVE AUTHORIZED CHANGING THE CHILD’S NAME TO A NAME NOT REQUESTED IN FATHER’S PETITION, A HEARING IS REQUIRED TO DETERMINE WHETHER THE NAME CHANGE IS IN THE CHILD’S BEST INTERESTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the court should not have authorized a change in the child’s name to a different name than that requested in father’s petition. The Fourth Department further found that a hearing to determine whether the name change is in the best interests of the child must be held:

The father filed the instant petition seeking to change the last name of the child to his surname and to alter the child’s first name because the father’s older daughter has the same name and lives with him and the child. The mother opposed the petition via sworn affidavit and provided a list of alternative names for the child to which she would not object. In its order, Supreme Court authorized the child to assume one of the names proposed by the mother, concluding that “the inclusion of both biological parents’ names in a child’s last name is reasonable and in the best interests of the child, particularly where, as here, both parents are active participants in the child’s life.” Thus, the court, in essence, denied the father’s petition in its entirety, and the father appeals.

… Civil Rights Law § 63 provides that, upon presentation of a petition for a name change, if the court “is satisfied . . . that the petition is true, and that there is no reasonable objection to the change of name proposed, . . . the court shall make an order authorizing the petitioner to assume the name proposed.” In the absence of a cross petition filed by the mother proposing a name change for the child, the only name that was properly before the court for consideration was the name change sought by the father in his petition.

Furthermore, “if the petition be to change the name of an infant, . . . the interests of the infant [must] be substantially promoted by the change”… . “With respect to the interests of the infant, the issue is not whether it is in the infant’s best interests to have the surname of the mother or father, but whether the interests of the infant will be promoted substantially by changing his [or her] surname” … . “As in any case involving the best interests standard, whether a child’s best interests will be substantially promoted by a proposed name change requires a court to consider the totality of the circumstances”  … . Matter of Segool v Fazio, 2018 NY Slip Op 08799, Fourth Dept 12-21-18

 

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REMARKS ALLEGED TO BE DEFAMATORY REFLECTED THE RESULTS OF A JUDICIAL PROCEEDING AND WERE THEREFORE PRIVILEGED PURSUANT TO CIVIL RIGHTS LAW 74 (FIRST DEPT).

The First Department determination the complaint alleging defamation causes of action against attorneys who had been interviewed about litigation involving plaintiff and Elizabeth Etling, whom the defendant attorneys represented. The court held that the remarks alleged to be defamatory were either protected descriptions of judicial determinations in the case or were otherwise not actionable. With respect to the Civil Rights Law privilege, the court wrote:

Defendants’ comment about plaintiff’s “massive spoliation” or “spoliation in droves” is protected under Civil Rights Law § 74 as a fair and true report, even if the Delaware Chancery Court did not use defendants’ exact words in its decision… . The court concluded that plaintiff had intended and attempted to destroy “a substantial amount of information,” and detailed plaintiff’s responsibility for the deletion, in violation of court order, of approximately 41,000 files from his computer. Plaintiff argues that defendants overstated the matter, because his spoliation proved largely reversible. Indeed, of the 41,000 files deleted, 1,000 were permanently destroyed. However, plaintiff did not cause the recovery of the data; rather, it occurred in spite of him. Moreover, he lied under oath about his spoliating conduct. As the court observed, an unsuccessful spoliator is still a spoliator… .

Defendants’ comment that plaintiff was “holding Elting hostage” is protected under Civil Rights Law § 74. During the interviews at issue, defendants cited the section of the post-trial decision in which the court used similar language in summarizing Elting’s position … . Defendants’ statement that “no rational person would ever want to partner with [plaintiff],” which is nearly a verbatim quotation from the court’s decision, is protected under the statute. Shawe v Kramer Levin Naftalis & Frankel LLP, 2018 NY Slip Op 08550, First Dept 12-13-18

 

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NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner’s application for permission to file a late notice of claim should not have been granted. After criminal charges were dismissed, eight months after the deadline for filing a notice of claim, petitioner sought to bring an action alleging violations of 42 USC 1983, false arrest, false imprisonment, assault, battery, and malicious prosecution. The Second Department found that a notice of claim is not required for the 42 USC 1983 action, the statute of limitations had expired on the assault and battery actions, reports documenting an investigation did not provide the city with timely notice of the essential facts of the claim, the excuse for the delay was not reasonable, and petitioner did not show the city was not prejudiced by the delay:

The branch of the petition which sought leave to serve a late notice of claim to assert, pursuant to 42 USC § 1983, violations of the petitioner’s federal civil and constitutional rights, should have been denied as unnecessary… . Such a claim is not subject to the State statutory notice of claim requirement … . …

We disagree with the Supreme Court’s conclusion that the City acquired actual knowledge of the essential facts constituting the relevant state law claims within 90 days after they arose or a reasonable time thereafter. Actual knowledge could not be readily inferred from two reports dated June 18, 2015, documenting an internal investigation conducted by the police department to determine how a firearm was allegedly carried into, and concealed within, the station house, that “a potentially actionable wrong had been committed by the [City]” against the plaintiff … . Moreover, the mere alleged existence of other police reports and records, without evidence of their content, and the involvement of the City’s police officers in the alleged incident, without more, were insufficient to impute actual knowledge to the City … .

We also disagree with the Supreme Court’s conclusion that the petitioner presented a reasonable excuse for his failure to serve a timely notice of claim. The petitioner’s incarceration did not constitute such an excuse, since the relevant state law claims did not accrue, and the petitioner’s time to serve a notice of claim did not begin to run, until he was released from custody … . Matter of Nicholson v City of New York, 2018 NY Slip Op 08134, Second Dept 11-28-18

MUNICIPAL LAW (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL RIGHTS LAW (42 USC 1983,  NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/42 USC 1983 (NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS,  NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STATUTE OF LIMITATIONS  (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/FALSE ARREST  (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/FALSE IMPRISONMENT  (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ASSAULT (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BATTERY (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))//MALICIOUS PROSECUTION  (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT).

The Second Department determined the defamation action against a newspaper was properly dismissed. A newspaper article about plaintiff’s divorce referred to plaintiff’s criminal conviction stemming from a “boiler room” penny-stock operation and stating that plaintiff “tried to use his old tricks to swindle his estranged wife out of millions of dollars…”. Plaintiff stock operation inspired the movie “Boiler Room:”

“Civil Rights Law § 74 is an affirmative defense to a claim of defamation” … . That section provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding” (Civil Rights Law § 74). The privilege afforded by this statute is absolute “and is not defeated by the presence of malice or bad faith” … . “This absolute privilege applies only where the publication is a comment on a judicial, legislative, or other official proceeding . . . and is a fair and true’ report of that proceeding” … .

As to the threshold requirement that the publication purport to comment on a judicial, legislative, or other official proceeding, if the context in which the statements are made makes it impossible for the ordinary viewer, listener, or reader to determine whether the defendant was reporting on a judicial or other official proceeding, the absolute privilege does not apply … .

As to the requirement that the publication be a fair and true report of the official proceeding, the Court of Appeals has recognized that “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality” … . Accordingly, “[w]hen determining whether an article constitutes a fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision”… . Rather, “[f]or a report to be characterized as fair and true’ within the meaning of the statute, thus immunizing its publisher from a civil suit sounding in libel, it is enough that the substance of the article be substantially accurate”… .

Here, the subject newspaper article explicitly stated that it was describing the divorce action commenced against the plaintiff by his former wife … . Furthermore, the defendants’ documentary evidence established, as a matter of law, that the disputed language in the newspaper article was a “fair and true” report of the factual findings made in the divorce action … . Contrary to the plaintiff’s contention, “the inaccuracies cited by the plaintiff were not so egregious as to remove the article from the protection of Civil Rights Law § 74” … . Gillings v New York Post, 2018 NY Slip Op 07413, Second Dept 11-7-18

DEFAMATION (STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT))/CIVIL RIGHTS LAW (DEFAMATION, STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT))/PRIVILEGE (DEFAMATION, STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT))/NEWSPAPER (DEFAMATION, STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT))

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DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined defendant publisher (Bloomberg) was not entitled to dismissal of a defamation action based upon the publication of articles about police investigations of a Hong Kong investment company. The court found that the Civil Rights Law privilege for reporting on a judicial proceeding could not be applied as a matter of law at the pre-discovery stage:

New York Civil Rights Law § 74 states, in pertinent part: “A civil action cannot be maintained . . . for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” Here, we disagree with the Supreme Court’s determination that the privilege is inapplicable to reporting on foreign official proceedings … . Nevertheless, we agree with the court’s denial of that branch of Bloomberg’s motion which was to dismiss pursuant to CPLR 3211(a)(7), inasmuch as the challenged statements were not privileged under Civil Rights Law § 74. When the challenged statements are viewed in context, it cannot be said as a matter of law that the statements provide a substantially accurate reporting of the two police investigations … . Moreover, we agree with the court’s determination that the plaintiff, at this pre-discovery stage, adequately alleged the element of gross irresponsibility … . Stone v Bloomberg L.P., 2018 NY Slip Op 05515, Second Dept 7-25-18

DEFAMATION (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))/CIVIL RIGHTS LAW (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))/PRIVILEGE (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))

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CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER THE PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the Civilian Complaint Review Board (CCRB) records concerning a particular police officer were exempt from disclosure under the Public Officers Law and Civil Rights Law:

Public Officers Law § 87(2)(a) provides, among other exceptions, that an agency may deny access to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is Civil Rights Law § 50-a, which, as relevant here, provides: “All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). As the Court of Appeals has acknowledged, the Legislature’s purpose in enacting Civil Rights Law § 50-a(1) was “to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination” … .

We agree with the Appellate Division, 1st Department, that records of the CCRB relating to complaints and proceedings against police officers are exempt from disclosure under Civil Rights Law § 50-a(1)… . The records that the petitioner requested are “personnel records used to evaluate performance toward continued employment or promotion.” Matter of Luongo v Records Access Officer, 2018 NY Slip Op 03681, Second Dept 5-23-18

​FREEDOM IN INFORMATION LAW (FOIL) (CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))/POLICE OFFICERS (FREEDOM OF INFORMATION LAW, CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))/CIVILIAN COMPLAINT REVIEW BOARD (POLICE OFFICER, FREEDOM OF INFORMATION LAW, CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))

IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that, although the image of a person (an avatar) in a video game can constitute a portrait within the meaning of the Civil Rights Law, the image in this case was not recognizable as the plaintiff, Lindsay Lohan. “Inasmuch as she did not provide written consent for the use of what she characterizes as her portrait and her voice in GTAV [Grand Theft Auto V], plaintiff commenced this action seeking, among other things, compensatory and punitive damages for invasion of privacy in violation of Civil Rights Law §§ 50 and 51:”

The primary questions on this appeal are whether an avatar (that is, a graphical representation of a person, in a video game or like media) may constitute a “portrait” within the meaning of Civil Rights Law §§ 50 and 51 and, if so, whether the images in question in the video game central to this matter are recognizable as plaintiff. We conclude a computer generated image may constitute a portrait within the meaning of that law. We also conclude, however, that the subject images are not recognizable as plaintiff, and that the amended complaint, which contains four causes of action for violation of privacy pursuant to Civil Rights Law §§ 50 and 51, was properly dismissed. Lohan v Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, CtApp 3-29-18

CIVIL RIGHTS LAW (IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/PORTRAITS (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/VIDEO GAMES (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/AVATARS  (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))

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PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) plaintiff, an administrative law judge for the New York City Department of Consumer Affairs, stated a cause of action for age discrimination under the NYC Human Rights Law (NYCHRL), (2) plaintiff’s failure to file a Notice of Claim required dismissal of the cause of action alleging a free speech violation of the State Constitution, and (3) plaintiff’s motion for leave to amend the complaint to assert a First Amendment retaliation cause of action pursuant to 42 USC 1983, should have been granted:

The allegations that there was disparate treatment of older employees, including the plaintiff, and that the plaintiff’s disciplinary charges were based, in part, on age discrimination, sufficiently stated a cause of action to recover for age discrimination pursuant to the NYCHRL … . …

The plaintiff’s failure to serve a notice of claim requires dismissal of the cause of action alleging violations of the State Constitution … . Contrary to the plaintiff’s contention, the action does not fall within the public interest exception to the notice of claim requirement, since the complaint seeks to vindicate the private rights of the plaintiff, and the disposition of the claim will not directly affect or vindicate the rights of others … . Further, although the complaint named the individual defendants in their individual capacities, it alleged retaliation by them as part of their employment, and, thus, the notice of claim requirement applied … . …

The Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross motion pursuant to CPLR 3025(b) for leave to amend the complaint to assert an alternative First Amendment retaliation cause of action pursuant to 42 USC § 1983, for which a notice of claim is not required… . In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit … . Mirro v City of New York, 2018 NY Slip Op 02154, Second Dept 3-28-18

EMPLOYMENT LAW (DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, DISCRIMINATION, RETALIATIO.. N, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/AGE DISCRIMINATION (EMPLOYMENT LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/CIVIL RIGHTS LAW (42 USC 1983) (EMPLOYMENT LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))MUNICIPAL LAW (NOTICE OF CLAIM, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/FREE SPEECH (EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/FIRST AMENDMENT (EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/RETALIATION (EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/DISCRIMINATION (EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/CIVIL PROCEDURE (AMENDMENT OF COMPLAINT, EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/CPLR 3025 (AMENDMENT OF COMPLAINT, EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))

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