Pittera v. Parade Publications, Inc. ( 1961 )

Birdie Amsterdam, J.

The defendants move pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice to dismiss the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action. By separate motion said defendants also move pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice to dismiss the second cause of action of said complaint on the ground that it does not state facts sufficient to constitute a cause of action, and for alternative relief pursuant to rule 103 of the Rules of Civil Practice to strike certain matter contained in the paragraphs of the complaint which reallege paragraphs of the first cause of action. These motions are consolidated, and are disposed of together.

By previous motion, which attacked the original complaint, the first cause of action for libel was sustained but certain matter alleged in the second cause of action was deemed objectionable and stricken, with leave to plaintiff to serve an amended complaint. [See 29 Misc 2d 90.] The amended complaint is now before us in the instant motions. The first cause of action, having been before this court previously, and its sufficiency approved, it will not be considered therefore on this motion. As to the second cause of action, which is bottomed on a violation of the right of privacy, a new attack is made thereto. This is proper as the amended complaint supersedes the original complaint and consequently it becomes subject to any new attack by the defendant. Plaintiff has claimed a violation of her right of privacy by reason of a multi-State publication. She has alleged that the publication was widely circulated and published in various cities throughout the United States. However, such an allegation is insufficient in an action brought under section 51 of the Civil Rights Law. If plaintiff has such a cause of action in other jurisdictions the publications there should be alleged as well as the applicable law of such jurisdictions (see Cardy v. Maxwell, 9 Misc 2d 329).

Accordingly, the motion to dismiss the second cause of action is granted, with leave to replead said cause of action, if plaintiff is so advised, within 20 days after service of a copy of this order with notice of entry. Parenthetically, if an amended complaint is served, the plaintiff should not reallege matter which was held objectionable by the prior order of this court.