The following papers numbered 1, 2 and 3 were fully submitted on this 22nd day of February, 2019:Notice of Motion, Attorneys Affirmation & Memorandum of Law on behalf of defendants to dismiss the complaint and for sanctions 1(Dated January 3, 2019) Notice of Cross-Motion on behalf of Plaintiff to strike Exhibits C and D of the Attorneys affirmation of Michael Grygiel and in Opposition to the motion, Attorneys Affirmation with Exhibits and Memorandum of Law 2(Dated February 4, 2019)Defendants’ Reply Brief in Opposition to Cross Motion and in further support of defendants’ Motion 3(Dated February 12, 2019)DECISION & ORDER The defendant moves to dismiss the complaint pursuant to CPLR §3211(1) and (7) and for costs and sanctions against the plaintiff based upon a frivolous action. The plaintiff cross moves for an order striking Exhibits C and D from the defendants’ motion.The plaintiff, Kevin DiMauro, attended Blessed Sacrament Elementary School from 1992 to 2002, which school was affiliated with Blessed Sacrament Church. On October 9, 2008, the defendant, Staten Island Advance published a story authored by defendant, Grunlund, concerning the suspension of Monsignor Boyle, the pastor of Blessed Sacrament Church, based upon allegations of sexual abuse. While the on-line version of the Staten Island Advance, had a photograph of Monsignor Boyle, the actual written newspaper for that date had a photograph from the year 2000 of Monsignor Boyle at Blessed Sacrament Church, proceeding down a church aisle with two other priests and several students, including the plaintiff, Kevin DiMauro. The caption under the photograph read: “Monsignor Francis Boyle seen here at Blessed Sacrament Roman Catholic Church in West Brighton in 2000, faces sex abuse allegations brought through the Archdiocese’s Independent Reconciliation Program”.The news article did not mention the names of any victims, but quoted the Archdiocese’s Independent Reconciliation and Compensation Program (IRCP) as stating that “we will not be releasing information on those who came forward, so as to protect their anonymity”. The article, entitled “Longtime Pastor Will Never Serve as a Priest Again” also mentioned that the church bulletin, where the information was obtained from, “does not provide any details about when, where and how the alleged abuse occurred”. After the article was published, the plaintiff claims to have received texts, some mocking, inquiring as to sexual abuse.Plaintiff alleges causes of action for defamation, violation of plaintiff’s New York Civil Rights pursuant to Sections 50 and 51; intentional infliction of emotional distress; and negligent infliction of emotional distress. The plaintiff also asserts gross negligence on the part of the defendants in publishing a photograph which creates the appearance that plaintiff was sexually abused without any investigation.On a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211, the pleading is afforded a liberal construction (Leon v. Martinez, 84 N.Y. 2d 83, 1994). The court accepts the facts as alleged in the complaint as true and accords the plaintiff the benefit of ever favorable inference and determines only whether the facts as alleged fit within any cognizable legal theory (Connaughton v. Chipolte Mexican Grill, Inc., 29 N.Y.3d 137, 2017). The standard is not whether the complaint states a cause of action but whether the plaintiff has a cause of action (Morales v. Copy Right, Inc., 28 A.D.3d 440, 2nd Dept., 2006). However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence or which are inherently incredible are not entitled to such consideration (Maas v. Cornell University, 94 N.Y.2d 87, 1999).To prove a claim for defamation, a plaintiff must show (1) a false statement that is (2) published to a third party (3) without privilege or authorizations that (4) causes harm unless the statement is one of the types of publications actionable regardless of harm (Dillon v. City of New York, 261 A.D.2d 34m 704 N.Y.S.2d 1, 1st Dept., 1999). Because falsity of the statement is an element of a defamation claim, the statement’s truth or substantial truth is an absolute defense (Konrady v. Brown, 91 A.D.3d 545, 937 N.Y.S.2d 190, 1st Dept., 2012).Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements (Armstrong v. Simon & Schuster, 85 N.Y.2d at 380-381, 625 N.Y.S.2d 477, 649 N.E.2d 825).On a motion to dismiss a defamation claim, the Court must decide whether the statements, considered in the context of the entire publication, are reasonably susceptible of a defamatory connotation, such that the issue is worthy of submission to a jury (Silsdorf v. Levine, 59 N.Y.2d 8, 462 N.Y.S.2d 822, 449 N.E.2d 716, 1983, cert. denied 464 U.S. 831, 104 S. Ct. 109, 78 L.Ed.2d 111, 1983).Although the Court of Appeals has not established a standard to be applied in defamation by implication cases, courts have adopted certain standards and guidelines. Therefore, to survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference (see, Stepanov v. Dow Jones & Co., 120 A.D.3d 28, 987 N.Y.S.2d 37, 1st Dept., 2014). This standard has been by the Appellate Division, Second Department in Udell v. NYP Holdings, Inc., 169 A.D.3d 954, 94 N.Y.S.3d 314, 2nd Dept., 2019 and by the Second Circuit Court of Appeals in Kavanaugh v. Zwilling, 578 Fed.Appx. 24, 2014).In applying this standard to the photograph and article at issue, the Court finds that there are no defamatory statements either direct or by implication. The photograph depicts Monsignor Boyle, together with a congregation of parishioners at Blessed Sacrament Church, and does not reference or imply that plaintiff or others in the photograph are victims of sexual abuse. The written article specifically states that information concerning victims of alleged sexual abuse are not being disclosed so as to protect their anonymity. Moreover, the plaintiff fails to make a “rigorous showing” that the photograph and article, as a whole, reasonably imparts a defamatory inference or suggests that the Advance endorses such an inference.Furthermore, neither the photograph nor article is defamatory in nature toward the plaintiff. The plaintiff is not portrayed in a negative manner and does not expose plaintiff to public contempt, ridicule, aversion or disgrace (Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435, Ct. Appeals, 2002).Accordingly, the cause of action for defamation and/or defamation by implication, must be dismissed.The plaintiff next asserts causes of action based on New York Civil Rights Law §§50, 51 alleging that the defendants used his photograph for trade purposes without obtaining the requisite consent. Defendants move to dismiss such causes of action relying upon the “newsworthy” exception.New York does not recognize a common law right of privacy and enacted Civil Rights Law §50 and §51 to establish a limited statutory right to privacy. Section 50 makes it a misdemeanor to use a living person’s name, portrait or picture for advertising or trade purposes without having first obtained their written consent or the written consent of a parent or guardian in the case of a minor.Civil Rights Law §51 states that “any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action…… and may also sue and recover damages for any injuries sustained…”.These sections do not apply to reports of newsworthy events or matters of public interest (see, Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350). Where an article is newsworthy, it is not deemed produced for the purposes of advertising or trade (see Howell v. New York Post Co.,) supra.Furthermore, newsworthyness is to be broadly construed (Frehofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d 349). The fact that a publication may have used a person’s name or likeness “solely or primarily to increase the circulation” of a newsworthy article and increase profits does not mean that the name or likeness has been used for trade purposes within the meaning of the statute (Seephano v. News Group Publs., 64 N.Y.2d 174, 485 N.Y.S.2d 220, 474 N.E.2d 580). The newsworthy doctrine applies regardless of any false implication that might be reasonably drawn from the use of plaintiff’s name or image (Messenger ex rel Messenger v. Gruner Jahr Printing and Publishing, 94 N.Y.2d 436, 706 N.Y.S.2d 52, 727 N.E.2d 549, 2000).There are two limitations of the newsworthy exception. There must be a real relationship between the article and the photograph and the article cannot be an advertisement in disguise (see, Messenger ex rel Messenger v. Gruner Jahr Printing and Publishing, 94 N.Y.2d 436, 706 N.Y.S.2d 52, 727 N.E.2d 549, 2000).In the present case, the article clearly reports newsworthy events. The story of Monsignor Boyle, a local pastor and prominent religious figure, facing sexual abuse allegations, is a newsworthy event. The photograph of Monsignor Boyle at Blessed Sacrament Church, also has a relationship to the article and is not an advertisement in disguise. Furthermore, the photograph does not bring the article into the category of “trade purposes”, even if it were used to perhaps increase circulation.Plaintiff claims that an action lies under the Civil Rights Law because the photograph juxtaposed with the article creates a false implication that he was a victim of sexual abuse. However, an unauthorized use of the plaintiff’s photograph to illustrate a newsworthy article that bears a relationship between the photograph and the article and is not an advertisement in disguise does not state a Civil Rights violation under Civil Rights Law §§50,51 (see, Messenger ex rel Messenger v. Gruner Jahr Printing and Publishing, supra).Lastly, the plaintiff asserts claims for intentional infliction of emotional distress and negligent infliction of emotion distress.To state a claim for intentional infliction of emotional distress, the plaintiff must allege (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress (see, Andrews v. Bruk, 220 A.D. 376, 631 N.Y.S.2d 771, 2nd Dept., 1995).The determination of whether the requisite outrageousness has been established is, in the first instance, a matter for the court to decide (see, Cavallaro v. Pozzi, 28 A.D.3d 1075, 814 N.Y.S.2d 462, 4th Dept., 2006). To survive a motion to dismiss, plaintiff must allege conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community (164 Mulberry St. Corp. v. Columbia University, 4 A.D.3d 49, 771 N.Y.S.2d 16, 1st Dept., 2004). Moreover, the publication of a single, purportedly false article or defamatory article regarding a person does not constitute extreme and outrageous conduct, as a matter of law (Bement v. N.Y.P. Holdings, Inc., 307 A.D.2d 86, 760 N.Y.S.2d 133, 1st Dept., 2003).Plaintiff alleges that the defendants improperly published a photograph of the plaintiff together with Monsignor Boyle in their story about allegations that the pastor committed sexual abuse, when there was no reason to publish plaintiff’s photograph since he had not been abused.This nor other conduct pled by the plaintiff can be said to be so extreme and outrageous as to go beyond all possible bounds of decency. Thus, dismissal of the plaintiff’s cause of action for intentional infliction of emotional distress is mandated.Plaintiff has not plead a claim for negligent infliction of emotional distress. Under New York Law, negligent infliction of emotional distress requires the same “extreme and outrageous conduct as does intentional infliction of emotional distress (see, Murphy v. Am. Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, 1983; Dawkins v. Williams, 413 F.Supp.2d 161, 2006). Since defendants conduct does not rise to the requisite level, this cause of action must also be dismissed.Lastly, defendants move for sanctions against the plaintiff pursuant to CPLR §8303-a and 22 NYCRR 130-1.1 c(1) on the ground that the action is frivolous and cannot be supported by a reasonable argument for an extension, modification or reversal of the existing law.In opposition to the defendants’ motion to dismiss, the plaintiff cites case law to support its position. However, this Court declines to accept the plaintiff’s position and analysis of case law cited therein. Based on the foregoing, this Court also declines to impose sanctions based upon frivolous conduct.Accordingly, the defendants’ motion to dismiss the plaintiff’s complaint is granted and the defendants’ motion for sanctions is denied. The plaintiff’s cross-motion to strike various exhibits is denied as moot.Dated: April, 2019
