GRIFFIN v. MEDICAL SOC. OF STATE OF N.Y

Factual and Procedural Background

This case involves an application by defendants Gardiner and Professional Journals, Inc. to dismiss an amended complaint filed by plaintiff Dennis Griffin. The complaint alleges violations of sections 50 and 51 of the Civil Rights Law, based on the publication of four photographs of the plaintiff taken by two defendant physicians during his treatment. These "before and after" photographs were published in a journal or magazine circulated by the moving defendants as part of an article titled "The Saddle Nose," authored by the defendant doctors. The plaintiff contends that the photographs were published without his written or other consent and were used for advertising or trade purposes. The defendants moved to dismiss the amended complaint for insufficiency on its face under rule 112 of the Rules of Civil Practice.

Legal Issues Presented

Whether the amended complaint sufficiently alleges that the plaintiff's photographs were used for advertising or trade purposes, thereby violating sections 50 and 51 of the Civil Rights Law.

Whether the amended complaint is legally sufficient on its face to withstand a motion to dismiss.

Arguments of the Parties

Defendants' Arguments

The photographs of the plaintiff were not part of an advertisement and therefore not used "for advertising purposes" as required under the Civil Rights Law.

The amended complaint is insufficient on its face because it does not establish that the photographs were used for advertising or trade purposes.

Plaintiff's Arguments

The photographs were knowingly published without the plaintiff's consent.

The use and publication of the photographs were for advertising or trade purposes, as alleged in the amended complaint.

The article and photographs served to advertise the defendant physicians and their work.

Court's Reasoning and Analysis

The court examined the amended complaint under the standard that it must be read broadly and not narrowly construed. It rejected the defendants' contention that the photographs were not used for advertising purposes merely because they were not part of a traditional advertisement. The court recognized that an article, even in a scientific publication, may serve as an advertisement in disguise and that publicity can amount to subtle or concealed advertising. The court found that the amended complaint fairly supports the inference that the article and accompanying photographs were published to advertise the defendant physicians and their work. The allegation that the photographs were used for advertising or trade purposes was deemed an allegation of ultimate fact, supported by the context of the article bearing the physicians' by-line and title. Accordingly, the court held the amended complaint sufficient on its face, allowing the issue of actual use for advertising to be determined at trial based on evidence.

Holding and Implications

The court DENIED the defendants' motion to dismiss the amended complaint for insufficiency on its face.

This decision means the plaintiff's complaint will proceed to trial where factual determinations regarding the use of the photographs for advertising or trade purposes will be made. The court did not establish new precedent but reaffirmed the principle that complaints alleging violations of Civil Rights Law sections 50 and 51 must be construed liberally at the pleading stage.

DENNIS GRIFFIN, Plaintiff, v. MEDICAL SOCIETY OF STATE OF NEW YORK et al., Defendants

THOMAS F. NOONAN, J.

This is an application, under rule 112 of the Rules of Civil Practice, by the defendants Gardiner and Professional Journals, Inc., to dismiss the amended complaint for insufficiency upon its face.

The amended complaint is predicated upon an alleged violation of sections 50 Civ. Rights and 51 Civ. Rights of the Civil Rights Law. Plaintiff alleges that the moving defendants publish a journal or magazine which is widely circulated; that he, plaintiff, was attended and treated by two physicians, also named as defendants; that these physicians took certain photographs of plaintiff, at the commencement of the treatment, and again at the completion, "before and after" pictures, and that these photographs, four in number, were published in the journal of the moving defendants "as part of an article written and prepared by and bearing the by-line of said defendant doctors and bearing the title `The Saddle Nose'." It is further alleged that this was knowingly done without plaintiff's written or other consent, and that "said use and publication of said pictures was for advertising purposes or purposes of trade."

The contention of the moving defendants seems to be that it appears from the amended complaint that plaintiff's pictures were not part of an advertisement, therefore, not used "for advertising purposes", notwithstanding the allegation therein that they were so used. This does not, however, appear and is not to be inferred from the amended complaint, which must be read broadly, not construed narrowly. It cannot be concluded, from the amended complaint, that the article was written and the photographs of plaintiff used strictly and solely for illustrative and scientific purposes. An article, even in a scientific publication, may be nothing more than someone's advertisement in disguise. There are advertisements not directly paid for or not paid for at all. Publicity of a kind which is tantamount to concealed or subtle advertising is sometimes freely given, or exchanged for some immediate or remote benefit anticipated by the publisher. No hard and fast line can be drawn. Each case depends upon its own facts. That the article in hand, with its accompanying photographs of plaintiff, was published by the moving defendants to advertise the defendant physicians and their handiwork is a fair inference to be drawn from the amended complaint. Furthermore, the allegation that the "use and publication of said pictures was for advertising purposes or purposes of trade" is an allegation of ultimate fact when read in conjunction with other allegations of the amended complaint, particularly with the allegation, above quoted, that the photographs were "part of an article * * * bearing the by-line of said defendant doctors and bearing the title, `The Saddle Nose'."

The amended complaint is therefore sufficient on its face, although it may appear at the trial, from the evidence, that the photographs were used solely for illustrative or scientific purposes.

The motion to dismiss the amended complaint is denied. Order signed.