Opinion
November 13, 2000.
Appeal from Order of Supreme Court, Erie County, Gorski, J. — Dismiss Pleading.
PRESENT: HAYES, J. P., SCUDDER, KEHOE AND LAWTON, JJ.
Order unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied defendant's motion to dismiss the amended complaint. Plaintiffs allege that defendant breached their privacy rights under Civil Rights Law §§ 50 and 51 by using a photograph of plaintiffs in its 1997 and 1998 advertising brochures and web site home pages. Although the court erred in determining that the incidental use exception to Civil Rights Law §§ 50 and 51 does not apply as a matter of law ( cf., Stillman v. Paramount Pictures Corp., 2 A.D.2d 18, 19-20, affd 5 N.Y.2d 994), we nevertheless conclude that the motion was properly denied because the applicability of the exception is an issue of fact for the jury. Where, as here, the use of a person's picture "is 'fleeting and incidental', it will not be actionable as a nonconsensual use of that person's [picture] for the purpose of advertising" ( Marks v. Elephant Walk, 156 A.D.2d 432, 434, quoting Delan v. CBS, Inc., 91 A.D.2d 255, 260). "Whether a particular use is incidental is determined through an assessment of the 'relationship of the references to a particular individual "to the main purpose and subject of the [work in issue]"'" ( Delan v. CBS, Inc., supra, at 260, quoting Ladany v. Morrow Co., 465 F. Supp. 870, 882). That assessment must be made by a jury in this case ( see, Grodin v. Liberty Cable, 244 A.D.2d 153).