P., dissents in a memorandum as follows: I would affirm the granting of leave to the plaintiff to serve an amended complaint against the New York Times. I would do this on a ground different from that stated by the court at Special Term. The plaintiff spells out a cause of action for violation of his right of privacy considered in Prosser’s Law of Torts ( [4th ed], pp 812-813) as “False Light in the Public Eye”: (“Another form in which it frequently appears is the use of the plaintiffs picture to illustrate a book or an article with which he has no reasonable connection, with the implication that such a connection exists — as where, for example, the face of an honest taxi driver is used to ornament a story about the cheating propensities of taxi drivers in the city. Still another is the inclusion of the plaintiffs name, photograph or fingerprints in a public ‘rogue’s gallery’ of convicted criminals, when he has not in fact been convicted of any crime. The false light need not necessarily be a defamatory one, although it very often is, so that a defamation action will also lie.”) The article printed in the Sunday magazine section of the New York Times of December 3,1978, entitled “The Black Middle Class—Making It”, was considered by some to be controversial, and the plaintiff found it offensive. However, the cover of the magazine used his photograph to illustrate the article, even though he had no connection whatever with the article, and, in fact, had no knowledge that his photograph would be used. Under the circumstances, he should be allowed to plead that cause of action. (See Leverton v Curtis Pub. Co., 192 F2d 974, 978.)