COSTANZA v. SEINFELD (2001)

Order and judgment, Supreme Court, New York County (Harold Tompkins, J.), entered August 18, 1999 and September 15, 1999, respectively, granting defendants' motion to dismiss the complaint, and imposing sanctions on plaintiff and his attorney in the amount of $2,500 each for the bringing of a frivolous action, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of vacating the sanctions, and otherwise affirmed, without costs.

 In this action based on plaintiff's claim that defendants “used the name, likeness and persona of the Plaintiff to create the character of George Costanza” for the Seinfeld television program, the court (181 Misc.2d 562, 693 N.Y.S.2d 897) properly dismissed plaintiff's invasion of privacy and Civil Rights Law causes of action.   New York places claims for invasion of privacy exclusively within the domain of Civil Rights Law sections 50 and 51 (see, Messenger v. Gruner & Jahr Printing & Publ., 94 N.Y.2d 436, 441, 706 N.Y.S.2d 52, 727 N.E.2d 549;  Howell v. New York Post Co., 81 N.Y.2d 115, 122-123, 596 N.Y.S.2d 350, 612 N.E.2d 699), and plaintiff does not contest that principle on appeal.   Plaintiff's Civil Rights Law causes of action must fail because defendants did not use plaintiff's “name, portrait or picture” within the meaning of those statutes (Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 403 N.Y.S.2d 218, 374 N.E.2d 129, affg. 58 A.D.2d 45, 395 N.Y.S.2d 205).   It is undisputed that defendants have never used plaintiff's actual name, or filmed plaintiff himself or made use of a photograph of plaintiff, in any form, except during a Seinfeld episode in which plaintiff appeared briefly as an actor;  the similarity of last names between plaintiff and the fictional character is not cognizable under the statute (People ex rel. Maggio v. Charles Scribner's Sons, 205 Misc. 818, 130 N.Y.S.2d 514).

 Moreover, works of fiction do not fall within the narrow scope of the statutory definitions of “advertising” or “trade” (Hampton v. Guare, 195 A.D.2d 366, 600 N.Y.S.2d 57, lv. denied 82 N.Y.2d 659, 605 N.Y.S.2d 5, 625 N.E.2d 590).   The alleged “commercial” use of the character in advertising was incidental or ancillary to the permitted use (see, Velez v. VV Publishing Corp., 135 A.D.2d 47, 524 N.Y.S.2d 186, lv. denied, 72 N.Y.2d 808, 533 N.Y.S.2d 57, 529 N.E.2d 425;  Namath v. Sports Illustrated, 48 A.D.2d 487, 371 N.Y.S.2d 10, affd. 39 N.Y.2d 897, 386 N.Y.S.2d 397, 352 N.E.2d 584;  Booth v. Curtis Publ. Co., 15 A.D.2d 343, 223 N.Y.S.2d 737, affd. 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812).

 Furthermore, these causes of action are time-barred, because the one-year Statute of Limitations (CPLR 215) ran from the inception of the Seinfeld program in 1989.   We reject plaintiff's argument that the Statute of Limitations ran anew with the airing of each episode featuring the George Costanza character (see, Sporn v. MCA Records, Inc., 58 N.Y.2d 482, 462 N.Y.S.2d 413, 448 N.E.2d 1324).

 Plaintiff's defamation claim against defendant Larry David was also properly dismissed.   In the context of being asked what he thought of a book written by plaintiff in which plaintiff sets forth his relationship with Jerry Seinfeld and claims to be the “real” George Costanza, defendant David allegedly replied that plaintiff was a “flagrant opportunist” and that plaintiff had greatly exaggerated his relationship with Seinfeld.   These purported statements clearly constituted the expression of opinion, which is not actionable (see, 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 589 N.Y.S.2d 825, 603 N.E.2d 930).

 Although we agree with defendants that plaintiff's lawsuit warranted dismissal, we reach the opposite conclusion with respect to defendants' claim that it warranted sanctions.   We do not find that there was anything wrongful about the commencement or continuation of this action, which was brought in good faith and was not frivolous (see, 22 NYCRR § 130-1.1 [c]).  Although plaintiff's arguments are not persuasive, they constitute reasonable invitations to the motion court and this Court to extend existing law to an unusual fact pattern (see, LaRussa v. LaRussa, 232 A.D.2d 297, 648 N.Y.S.2d 567;  Bozer v. Higgins, 204 A.D.2d 979, 613 N.Y.S.2d 312;  see also, Parks v. Leahey & Johnson, 81 N.Y.2d 161, 165, 597 N.Y.S.2d 278, 613 N.E.2d 153).   Thus, the sanctions against plaintiff and his counsel are vacated.

MEMORANDUM DECISION.