                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: February 23, 2017                     522707
________________________________

CHRISTOPHER PORCO,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

LIFETIME ENTERTAINMENT
   SERVICES, LLC,
                    Respondent.
________________________________


Calendar Date:   January 18, 2017

Before:   McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.

                               __________


     Christopher Porco, Dannemora, appellant pro se.

     David A. Schulz, New York City, for respondent.

      Davis Wright Tremaine, LLP, New York City (Robert Balin of
counsel), for The Reporters Committee for Freedom of the Press
and others, amici curiae.

                               __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Muller, J.),
entered April 20, 2015 in Clinton County, which granted
defendant's motion to dismiss the complaint.

      In 2006, plaintiff was convicted of the murder of his
father and the attempted murder of his mother (see generally
People v Porco, 71 AD3d 791, 792 [2010], affd 17 NY3d 877
[2011]). In December 2012, plaintiff discovered that defendant
intended to broadcast a film entitled "Romeo Killer: The
Christopher Porco Story" (hereinafter the film). On January 29,
2013, plaintiff commenced this action pursuant to Civil Rights
                              -2-                522707

Law §§ 50 and 51, seeking a preliminary injunction to prevent the
airing of the film. Plaintiff's subsequent motion for a
temporary restraining order to prevent the film's broadcast
pending a decision on his motion for a preliminary injunction was
granted by Supreme Court. Defendant appealed and this Court
granted emergency relief to defendant by vacating the temporary
restraining order pending an appeal on the merits and, as
planned, the film was nationally televised on March 23, 2013.
Supreme Court's order was ultimately reversed and vacated by this
Court (116 AD3d 1264 [2014]). Thereafter, Supreme Court granted
defendant's motion to dismiss the complaint for failure to state
a cause of action. Plaintiff now appeals, and we reverse.

      On a motion pursuant to CPLR 3211 (a) (7) to dismiss a
complaint for failure to state a cause of action, this Court
"must afford the complaint a liberal construction, accept as true
the allegations contained therein, accord the plaintiff the
benefit of every favorable inference and determine only whether
the facts alleged fit within any cognizable legal theory" (He v
Realty USA, 121 AD3d 1336, 1339 [2014] [internal quotation marks
and citations omitted], lv dismissed and denied 25 NY3d 1018
[2015]). New York provides a limited statutory right of privacy.
Pursuant to Civil Rights Law § 50, it is a misdemeanor when a
firm or corporation "uses for advertising purposes, or for the
purposes of trade, the name, portrait or picture of any living
person without having first obtained the written consent of such
a person" (Civil Rights Law § 50). Similarly, Civil Rights Law §
51 allows a plaintiff to "maintain an equitable action in the
supreme court of this state against the [firm or corporation] so
using his [or her] name, portrait, picture or voice, to prevent
and restrain the use thereof; and may also sue and recover
damages for any injuries sustained by reason of such use" (Civil
Rights Law § 51). The Legislature intended for this statutory
protection of privacy to be "strictly limited to nonconsensual
commercial appropriations of the name, portrait or picture of a
living person" (Finger v Omni Publs. Intl., 77 NY2d 138, 141
[1990]), and these statutory provisions "do not apply to reports
of newsworthy events or matters of public interest" (Messenger v
Gruner + Jahr Print. & Publ., 94 NY2d 436, 441 [2000], cert
denied 531 US 818 [2000]).
                              -3-                522707

      The scope of the newsworthiness exception to liability,
however, must be construed in accordance with binding Court of
Appeals precedent. The Court of Appeals has held that statutory
liability applies to a materially and "substantially fictitious
biography" (Spahn v Julian Messner, Inc., 18 NY2d 324, 329
[1966], vacated 387 US 239 [1967], adhered to on remand and rearg
21 NY2d 124 [1967], appeal dismissed 393 US 1046 [1969]) where a
"knowing fictionalization" amounts to an "all-pervasive" use of
imaginary incidents (Spahn v Julian Messner, Inc., 21 NY2d 124
127-129 [1967], appeal dismissed 393 US 1046 [1969]) and a
biography that is "nothing more than [an] attempt[] to trade on
the persona" of the plaintiff (Messenger v Gruner + Jahr Print. &
Publ., 94 NY2d at 446; see generally Lerman v Flynt Distributing
Co., Inc., 745 F2d 123, 131-132 [2d Cir 1984]). When it most
recently addressed the aforementioned principles, the Court of
Appeals explained that a work "may be so infected with fiction,
dramatization or embellishment that it cannot be said to fulfill
the purpose of the newsworthiness exception" (Messenger v Gruner
+ Jahr Print. & Publ., 94 NY2d at 446). As further binding Court
of Appeals precedent makes clear, the fact that a film revolves
around a "true occurrence" (id. at 445), such as a rescue of
passengers from a shipwreck, does not invoke the newsworthiness
exception in the event that the entire account remains "mainly a
product of the imagination" (Binns v Vitagraph Co. of Am., 210 NY
51, 56 [1913]). Finally, the Court of Appeals has directly
passed on the issue of whether extending liability in the
aforementioned manner violated constitutional protections of
freedom of speech and has found no such violation (see Spahn v
Julian Messner, Inc., 21 NY2d at 129).

      Thus, the issue before this Court is whether plaintiff's
complaint, when given the benefit of every favorable inference,
alleges facts suggesting that defendant knowingly produced a
materially and substantially fictitious biography that violates
the statutory right of privacy.1 Turning to the record,


    1
        The Court of Appeals has made clear that the
aforementioned line of cases dealing with "invented biographies
of plaintiffs' lives" relate to "strikingly different" scenarios
from those cases where the Court has addressed "the unauthorized,
                               -4-                522707

plaintiff alleges that the film is a "knowing and substantially
fictionalized account" about plaintiff "and the events that led
to his incarceration," and that it appropriates his name without
his consent "for purposes of profit." In support of this claim,
plaintiff offered a letter written by a producer associated with
the film to his mother before the film's release. The producer
indicated that she was involved in the production of a
documentary intended to accompany the film that the producer
"hope[d] . . . [would] provide the platform for [the mother's]
family to state their position in a non-fictional program after
the [film] airs." Viewing the producer's correspondence in the
light most favorable to plaintiff and according plaintiff the
benefit of every favorable inference, it is reasonable to infer
that the producer indicated that the film was considered to be a
fictitious program. Considering the foregoing and the standard
of review on a motion to dismiss, we cannot say that plaintiff
has failed to sufficiently allege the same degree of
fictionalization or the same degree of defendant's knowledge of
such fictionalization as that which has been found to violate the
statutory right to privacy without running afoul of
constitutional protections of speech (see Spahn v Julian Messner,
Inc., 21 NY2d at 129; see also Binns v Vitagraph Co. of Am., 210
NY at 56).2 Accordingly, defendant's motion to dismiss for


and allegedly false and damaging, use of plaintiffs' photographs
to illustrate newsworthy articles" (Messenger v Gruner + Jahr
Print. & Publ., 94 NY2d at 446). The Court of Appeals has also
offered the guidance that courts, in addressing alleged
violations of the statutory right of privacy, ought to resort to
precedent "directly on point" for the governing rules, which,
here, are cases such as Spahn v Julian Messner, Inc. (21 NY2d 124
[1967], supra) and Binns v Vitagraph Co. of Am. (supra) that
regard biographies (Messenger v Gruner + Jahr Print. & Publ., 94
NY2d at 446).
     2
        We emphasize that, at this procedural stage, the film is
not before this Court, and "[w]hether an item is newsworthy
depends solely on [its] content" (Messenger v Gruner + Jahr
Print. & Publ., 94 NY2d at 442 [internal quotation marks and
citation omitted]).
                              -5-                  522707

failure to state a cause of action should have been denied.

     Garry, Lynch, Devine and Mulvey, JJ., concur.



      ORDERED that the order is reversed, on the law, with costs,
and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
