New York State was unsuccessful in its effort to dismiss per se defamation claims by a woman whose stock photo was used in an ad campaign that falsely identified her as having HIV.

A panel of Appellate Division, First Department in Manhattan found that, despite society's evolving views on people who are diagnosed with HIV and AIDS—and the fact that the five-judge panel does not favor the wording of the standard, which the state characterized as “archaic”—plaintiff Avril Nolan's claims meet the “loathsome disease” standard for proving defamation per se.

Writing for the court, Justice Angela Mazzarelli said that while Nolan was portrayed in the ad campaign as having contracted a loathsome disease, as it is defined in the statute, which she claims caused damage to her reputation, the unanimous ruling from the state appeals court should not be taken to mean that the justices find people with HIV or other diseases to be “objectively shameful.”

Rather, Mazzarelli said, it should be made clear that attributing a particular disease to someone is per se defamation because a significant portion of society has been slow to understand that sufferers of a particular disease are entitled to equal treatment under the law.

“Such a reworking of the category reflects the reality that those who suffer from the condition are the unfortunate targets of outmoded attitudes and discrimination,” Mazzarelli said, waving off the state's argument that the “loathsome disease” category is archaic and has no place in the court's jurisprudence.

Mazzarelli was joined on the decision by Justices Dianne Renwick, Sallie Manzanet-Daniels, Marcy Kahn and Peter Moulton.

The photo of Nolan, a model, was used in a campaign to advocate for the rights of people with HIV for a poster that contained the words “I AM POSITIVE (+)” and “I HAVE RIGHTS.” The poster did not contain a disclaimer stating that she does not have HIV.

Nolan had posed for the photo for an article about New Yorkers' music interests, court papers state, but the photographer sold the image to Getty Images, which it licensed to the New York State Division of Human Rights.

Nolan did not sign a release for the photo or give the photographer the permission to sell it to Getty, court papers state. She sued for per se defamation, seeking $1.5 million in damages, and also claimed that the state violated provisions of the state Civil Rights Law barring the nonconsensual use of a person's image for commercial purposes.

She also filed suit against Getty Images, seeking more than $400,000 in a separate action, but the parties reached a private settlement in the case

In 2015, Court of Claims Judge Thomas Scuccimarra granted summary judgment for Nolan on her defamation and civil rights claims.

But on appeal to the First Department, while the court found for Nolan on her per se defamation claims, the court said Scuccimarra should have granted the state's motion for summary judgment on Nolan's civil rights claims, saying that the state used her photo in a noncommercial campaign to promote civil rights.

Erin Lloyd of Lloyd Patel appeared for Nolan; she declined to comment on the ruling. Assistant Attorneys General Eric Del Pozo and Anisha Dasgupta appeared for the state. Attorney General Eric Schneiderman's office did not respond to a request for comment.