Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007)
The single publication rule applies to claims brought under New York Civil Rights Law §§ 50 and 51, meaning the statute of limitations begins to run from the date the offending material is first published, not from the date of discovery.
Summary
Photographer Philip-Lorca diCorcia took candid photographs of people in Times Square between 1999 and 2001 without their knowledge. One photograph included Erno Nussenzweig. DiCorcia exhibited and sold the photographs in the fall of 2001. Nussenzweig did not discover the use of his image until March 2005 and subsequently sued, alleging a violation of his statutory right to privacy under Civil Rights Law §§ 50 and 51. The defendants moved for summary judgment, arguing the one-year statute of limitations barred the claim. The New York Court of Appeals held that the single publication rule applied, and the statute of limitations ran from the initial publication date, not the date of discovery, barring Nussenzweig’s claim.
Facts
Between 1999 and 2001, Philip-Lorca diCorcia took candid photographs of individuals in Times Square without their consent or knowledge.
In the fall of 2001, diCorcia exhibited these photographs at an art gallery owned by Pace/MacGill, Inc.
Pace/MacGill published and sold a catalogue containing images on display, and created limited edition prints of each photograph for sale.
One of the images was of Erno Nussenzweig.
Nussenzweig did not learn of the photograph’s use until March 2005.
Procedural History
Nussenzweig commenced an action against diCorcia and Pace/MacGill, Inc., alleging violation of Civil Rights Law §§ 50 and 51.
Defendants moved for summary judgment, arguing the claim was time-barred by the one-year statute of limitations.
Supreme Court granted the defendants’ motion.
The Appellate Division affirmed the Supreme Court’s decision and granted leave to appeal to the Court of Appeals, certifying the question of whether the order of the Supreme Court, as affirmed, was properly made.
Issue(s)
Whether the single publication rule applies to claims brought under Civil Rights Law §§ 50 and 51, such that the statute of limitations begins to run from the date of the initial publication, or from the date the plaintiff discovers the publication.
Holding
Yes, because the policy underlying the single publication rule – to prevent stale claims and protect defendants from defending actions after memories fade and evidence is lost – is equally applicable to statutory right of privacy claims under Civil Rights Law §§ 50 and 51.
Court’s Reasoning
The court applied the single publication rule, which states that a cause of action accrues on the date the offending material is first published, citing Gregoire v Putnam’s Sons, 298 NY 119, 125-126 (1948).
The court reasoned that the policy behind statutes of limitations, as articulated in Gregoire, is to “ ‘spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost’ ” (id. at 125, quoting Chase Securities Corp. v Donaldson, 325 US 304, 314 [1945]).
The court acknowledged that New York appellate courts have generally applied the single publication rule to statutory right of privacy claims. It cited cases such as E.B. v Liberation Publs., 7 AD3d 566, 567 [2d Dept 2004] and Castel v Sherlock Corp., 159 AD2d 233 [1st Dept 1990], while also noting the exception in Russo v Huntington Town House, 184 AD2d 627, 628 [2d Dept 1992], which held the statute of limitations runs from the date of the most recent violation.
The Court found that the publishing event occurred no later than the fall of 2001, more than one year before Nussenzweig commenced suit. Therefore, his claims were time-barred.