E.B. v. LIBERATION PUBLICATIONS, INC

Citation Codes

Equivalent Citations

citation codes

Docket Number

2003-02231.

Attorney(S)

Davis Wright Tremaine LLP, New York, N.Y. (Marcia B. Paul and Matthew A. Leish of counsel), for appellant. Tranfo Tranfo, LLC, Jericho, N.Y. (Joseph A. Tranfo of counsel), for respondent.

Judges

Robert J. Miller
Reinaldo E. Rivera

See more information ...

Smart Summary

Factual and Procedural Background

In October 2000, the plaintiff, a heterosexual professional male model, posed for the cover of a book titled The Day Eazy-E Died, published and distributed by the defendant. The book cover was printed and distributed to prospective purchasers as early as January 2001 and became available for public sale over the internet by May 2001, with consumer orders placed before June 2001. The plaintiff discovered in August 2001 that the book contained homosexual themes and was marketed to a homosexual male audience, claiming he was never informed that his photograph would be used to illustrate, advertise, and market a homosexually-themed book.

On July 3, 2002, the plaintiff commenced an action seeking damages for libel, violations of Civil Rights Law §§ 50 and 51, fraudulent concealment, negligent infliction of emotional distress, and injunctive relief to stop distribution of the book. The defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7). The Supreme Court, Kings County, denied the motion. The defendant appealed.

Legal Issues Presented

Whether the plaintiff’s libel claim was barred by the statute of limitations.
Whether the plaintiff’s claims under Civil Rights Law §§ 50 and 51 were time-barred.
Whether the plaintiff sufficiently alleged a cause of action for fraudulent concealment.
Whether the plaintiff stated a valid claim for negligent infliction of emotional distress.
Whether the plaintiff was entitled to injunctive relief to enjoin distribution of the book.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gregoire v. Putnam's Sons, 298 N.Y. 119, 126	Definition of accrual of libel cause of action upon publication date when material becomes generally available.	Used to determine that the libel cause of action accrued by June 2001 when the book was available for sale and thus was time-barred.
Love v. Morrow Co., 193 A.D.2d 586, 589	Same as above regarding libel accrual upon publication.	Supported the conclusion that the libel claim was barred by the one-year statute of limitations.
Castel v. Sherlock Corp., 159 A.D.2d 233	Statute of limitations applies to claims under Civil Rights Law §§ 50 and 51.	Applied to hold that the plaintiff’s Civil Rights Law claims were also time-barred.
P.T. Bank Cent. Asia, N.Y. Branch v. ABN AMRO Bank N.V., 301 A.D.2d 373, 376	Elements required for fraudulent concealment include a duty to disclose material information.	Determined that the plaintiff failed to allege such a duty, warranting dismissal of fraudulent concealment claim.
Swersky v. Dreyer Traub, 219 A.D.2d 321, 326	Same as above regarding duty to disclose in fraudulent concealment claims.	Supported dismissal of fraudulent concealment claim for failure to allege duty.
Perry v. Valley Cottage Animal Hosp., 261 A.D.2d 522	Elements of negligent infliction of emotional distress require a breach of duty that endangers plaintiff’s physical safety or causes fear for safety.	Applied to conclude that the plaintiff's claim lacked such elements and should be dismissed.
Lancellotti v. Howard, 155 A.D.2d 588, 589-590	Same as above regarding negligent infliction of emotional distress.	Supported dismissal of the emotional distress claim for failure to meet required elements.

Court's Reasoning and Analysis

The court analyzed the timeliness and substantive sufficiency of the plaintiff's claims. It held that the libel cause of action accrued when the book was first made generally available to the public (by June 2001), rendering the July 2002 complaint untimely under the one-year statute of limitations. Similarly, claims under Civil Rights Law §§ 50 and 51 were also barred by the statute of limitations.

Regarding fraudulent concealment, the court emphasized that a duty to disclose material information is an essential element, which the plaintiff did not allege. Therefore, this claim was properly dismissed.

For negligent infliction of emotional distress, the court noted that although physical injury is not always required, the claim must be based on a breach of duty that endangers the plaintiff’s physical safety or causes fear for safety. The plaintiff's allegations did not meet this standard, warranting dismissal.

Finally, the court found no basis for injunctive relief under CPLR 6301, denying the plaintiff’s request to enjoin distribution of the book. The court did not address other contentions of the defendant as they were unnecessary to the decision.

Holding and Implications

The court reversed the Supreme Court's order, granted the defendant's motion to dismiss, and dismissed the complaint with costs.

This decision bars the plaintiff's claims as untimely and substantively insufficient, resulting in dismissal of all causes of action and denial of injunctive relief. The ruling directly affects the parties by terminating the litigation without establishing new legal precedent.

Show full summary ...

E.B., respondent, v. LIBERATION PUBLICATIONS, INC., D/B/A ALYSON PUBLICATIONS, appellant.

DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

In October 2000, the plaintiff, a heterosexual professional male model, posed for the cover of a book entitled The Day Eazy-E Died, which was published and distributed by the defendant. The book cover was printed and distributed to prospective purchasers as early as January 2001, and became available to the public for sale over the internet in May 2001. Consumer orders for the book were placed prior to June 2001. According to the plaintiff, in August 2001, he discovered that the book dealt with homosexual themes and was marketed for a homosexual male audience. He claimed that he was never advised that "his photograph would be used to illustrate, advertise and market a homosexually-themed book."

On July 3, 2002, the plaintiff commenced the instant action to recover damages for libel, violations of Civil Rights Law §§ 50 and 51, fraudulent concealment, and negligent infliction of emotional distress. The plaintiff also sought an injunction, inter alia, to enjoin the distribution and circulation of the book. Thereafter, the defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7). The Supreme Court denied the motion. We reverse.

The statute of limitations for a cause of action to recover damages for libel is one year ( see CPLR 215). The accrual of a cause of action for libel occurs upon the "publication" of the offending material, which has been repeatedly defined as the date on which the offending material was placed on sale or became generally available to the public ( Gregoire v. Putnam's Sons, 298 N.Y. 119, 126; Love v. Morrow Co., 193 A.D.2d 586, 589). Here, the subject book was posted on the internet, and placed on sale to the general public by June 2001. Thus, the plaintiff's cause of action to recover damages for libel was time-barred. The plaintiff's causes of action brought pursuant to Civil Rights Law §§ 50 and 51 were also time-barred ( see Castel v. Sherlock Corp., 159 A.D.2d 233).

Additionally, the Supreme Court should have dismissed the plaintiff's cause of action alleging fraudulent concealment. A cause of action to recover damages for fraudulent concealment requires, inter alia, an allegation that the defendant had a duty to disclose material information ( see P.T. Bank Cent. Asia, N.Y. Branch v. ABN AMRO Bank N.V., 301 A.D.2d 373, 376; Swersky v. Dreyer Traub, 219 A.D.2d 321, 326). Here, the plaintiff failed to set forth such an allegation in the complaint.

Moreover, the plaintiff's cause of action to recover damages for negligent infliction of emotional distress should have also been dismissed. While physical injury is not a necessary element of a cause of action to recover damages for negligent infliction of emotional distress, such a cause of action must generally be premised upon a breach of a duty owed directly to the plaintiff which either unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for his or her own safety ( see Perry v. Valley Cottage Animal Hosp., 261 A.D.2d 522; Lancellotti v. Howard, 155 A.D.2d 588, 589-590). Such elements were not present here.

The plaintiff was not entitled to injunctive relief ( see generally CPLR 6301).

In light of the foregoing, we need not address the defendant's remaining contentions.

SANTUCCI, J.P., S. MILLER, SCHMIDT and RIVERA, JJ., concur.