PERRY v. ROCKMORE (2025)

OPINION AND ORDER

Appeal from an order of the Supreme Court (James Ferreira, J.), entered August 23, 2023 in Albany County, which partially granted defendants’ motions to dismiss the amended complaint.

Defendant Jeffrey L. Rockmore is a plastic surgeon and, according to plaintiff's amended complaint, he performed a rhinoplasty on her on June 13, 2017.  After plaintiff learned that photographs depicting her face before and after the procedure had been posted on various commercial websites and social media platforms to promote Rockmore's work, she commenced this action in July 2022.  The complaint, as amended, asserted numerous claims against Rockmore and various related entities (hereinafter collectively referred to as the Rockmore defendants), as well as entities that Rockmore was either a principal of or working for in 2017, defendants Plastic Surgery Associates, LLP and Plastic Surgery Group, LLP (hereinafter collectively referred to as the Plastic Surgery Group).  As is relevant here, the amended complaint alleged that defendants’ conduct in publishing the photographs violated the statutory right to privacy afforded to plaintiff by Civil Rights Law § 50 and breached the fiduciary duty they owed as her medical providers.

Following joinder of issue, the Rockmore defendants and the Plastic Surgery Group separately moved to dismiss the amended complaint on the grounds that its claims were either time-barred or failed to state a claim.  Supreme Court, as is relevant here, granted that part of the motion seeking to dismiss the breach of fiduciary duty claim because plaintiff's exclusive remedy for the use of her image was the statutory remedy granted by Civil Rights Law §§ 50 and 51.  Plaintiff appeals, arguing that Supreme Court erred in dismissing the breach of fiduciary duty claim.

We agree.  In New York, “the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law;  we have no common law of privacy” (Howell v. New York Post Co., 81 N.Y.2d 115, 123, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993];  see Lohan v. Take–Two Interactive Software, Inc., 31 N.Y.3d 111, 119, 73 N.Y.S.3d 780, 97 N.E.3d 389 [2018];  Stephano v. News Group Pubs., Inc., 64 N.Y.2d 174, 183, 485 N.Y.S.2d 220, 474 N.E.2d 580 [1984];  Porco v. Lifetime Entertainment Servs., LLC, 195 A.D.3d 1351, 1353, 150 N.Y.S.3d 380 [3d Dept. 2021], appeal dismissed 37 N.Y.3d 1084, 155 N.Y.S.3d 393, 177 N.E.3d 589 [2021], lv denied 38 N.Y.3d 912, 2022 WL 2838371 [2022]).  As Supreme Court correctly concluded, that fact would doom any claim by plaintiff which was premised upon the invasion of a nonexistent common-law right to privacy (see Lohan v. Take–Two Interactive Software, Inc., 31 N.Y.3d at 119, 73 N.Y.S.3d 780, 97 N.E.3d 389;  Hampton v. Guare, 195 A.D.2d 366, 366–367, 600 N.Y.S.2d 57 [1st Dept. 1993], lv denied 82 N.Y.2d 659, 605 N.Y.S.2d 5, 625 N.E.2d 590 [1993]).  A review of plaintiff's amended complaint reveals, however, that her breach of fiduciary duty claim is not based upon such an invasion.

Plaintiff instead alleges that defendants all had a physician-patient relationship with her and that they breached a distinct duty arising out of that relationship by publicly disclosing photographs of her that had been taken in the course of treatment without her agreement.¹  “It is well established that a patient may maintain a cause of action for breach of fiduciary duty against his or her physician resulting from the physician's unauthorized disclosure of the patient's medical records,” broadly defined as essentially any information acquired by the physician that relates to the patient's diagnosis or treatment, as such disclosure violates “the implied covenant of trust and confidence that is inherent in the physician patient relationship” (Burton v. Matteliano, 81 A.D.3d 1272, 1274, 916 N.Y.S.2d 438 [4th Dept. 2011] [internal quotation marks and citations omitted], lv denied 17 N.Y.3d 703, 2011 WL 2314370 [2011];  see Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46, 52–54, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016];  Bonner v. Lynott, 203 A.D.3d 1526, 1528–1529, 166 N.Y.S.3d 325 [3d Dept. 2022];  Juric v. Bergstraesser, 44 A.D.3d 1186, 1188, 844 N.Y.S.2d 465 [3d Dept. 2007]).  A claim for breach of fiduciary duty, based as it is upon the well-established duty a physician owes to his or her patient as opposed to a purported right of privacy, may be viable where claims based upon a generalized invasion of privacy are not (see generally MacDonald v. Clinger, 84 A.D.2d 482, 482–487, 446 N.Y.S.2d 801 [4th Dept. 1982]).  It suffices to say that we “give the pleadings a liberal construction, accept the allegations as true and accord the plaintiff[ ] every possible favorable inference” in the context of a motion to dismiss and, applying that standard here, are satisfied that plaintiff has stated a claim for breach of fiduciary duty in her amended complaint (Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d at 52, 29 N.Y.S.3d 879, 49 N.E.3d 1171).  Thus, Supreme Court erred in dismissing that claim.

Plaintiff's remaining contentions, to the extent that they are properly before us, are rendered academic by the foregoing.

ORDERED that the order is modified, on the law, with costs to plaintiff, by denying that part of defendants’ motions seeking to dismiss the breach of fiduciary duty cause of action;  said cause of action is reinstated;  and, as so modified, affirmed.

FOOTNOTES

1.   Notwithstanding the argument of the Rockmore defendants, the amended complaint contained sufficiently specific allegations as to how defendants breached their fiduciary duty to plaintiff (see CPLR 3016[b]).  The details as to when and where the photographs were purportedly disclosed are a matter for discovery, and plaintiff's failure to provide them at this early stage of the action does not warrant dismissal (see Hartshorne v. Roman Catholic Diocese of Albany, N.Y., 200 A.D.3d 1427, 1431 n, 161 N.Y.S.3d 384 [3d Dept. 2021];  Serio v. Rhulen, 24 A.D.3d 1092, 1094, 806 N.Y.S.2d 283 [3d Dept. 2005]).

Egan Jr., J.P.

Clark, Reynolds Fitzgerald, Fisher and Mackey, JJ., concur.