Bradley v. Almat Publishing Corp.

Abraham Uellinoff, J.

Defendants Almat Publishing Corp., Alfred Plaine, and Matthew Huttner move for an order requiring plaintiff to serve an amended complaint in which there will be separately stated and numbered the alleged causes for breach of right of privacy and for libel, and for a further order striking out from the complaint paragraphs 4th, 12th and 15th. Plaintiff disavows any purpose to allege a cause in libel. He complains only of the use of his name and photograph without his consent and more particularly of an article entitled “ Crack Up ”, appearing in the April, 1960 issue of Man’s Magasine. Further, it is alleged that plaintiff’s name and photograph as published in that article were used for the purpose of defendants ’ business and trade and to increase the sale and circulation of the magazine.

In paragraph 4th it is alleged upon information and belief that Man’s Magasine is devoted to the publication of sensational and lurid photographs, illustrations, stories and articles about sex, crime and horror, and in paragraph 12th it is alleged that the article “ Crack Up ” was published in close association and proximity with and sandwiched between lurid and sensational articles, photographs and illustrations of sex, crime and horror. While those allegations are irrelevant to the question whether the particular article may be classified as a report of current news or of educational or informational value, they are nevertheless pertinent to plaintiff’s claim of right to exemplary damage under section 50 of the Civil Rights Law if the claim of right to compensatory damage is established. Accordingly, those allegations are not so irrelevant or remote as to warrant their elimination.

In paragraph 15th it is alleged that plaintiff has been exposed as an object of pity, curiosity and amusement and subjected to ridicule, was humiliated and degraded and suffered great mental pain and anguish. Such allegations are not pertinent to the statement of a cause based on claimed violation of the Civil Rights Law, but are germane to the statement of a cause of action in libel.

The motion is granted striking out the allegations of paragraph 15th of the complaint, and it is in all other respects denied, and the complaint is deemed amended accordingly.