Welch v. Mr. Christmas Inc.

Kupferman, J. P. (dissenting in part).

I would modify to strike the punitive damage award. There is no dispute with the majority’s factual analysis as far as it goes.

This is essentially a breach of contract claim. Obviously, as a matter of trial strategy, counsel for the plaintiff discontinued claims other than right of privacy, because only on the basis of section 51 of the Civil Rights Law would there even be the possibility of exemplary damages.

No specific damage having been shown nor economic value interfered with,1 the only logical award was $1,000, being the equivalent of another option year possibility, exercised in fact if not by express provision.

The error of omission indicated in the majority opinion, in that the defendant “had made little or no effort to inform its local distributors of the expiration of the period of permissible use of the commercial,” was certainly not egregious. In fact, one might even assume that with a $20 to $30 deposit to insure the return of the tape, the defendant was using a reasonable method of getting these tapes out of circulation.

There was no normal basis for punitive damages. There was no “intentional wrongdoing.” (See Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 400; Garrity v Lyle Stuart, Inc., 40 NY2d 354, 358; Walker v Sheldon, 10 NY2d 401,406; New CanaanForeign Car Serv. vBlohm, 85 AD2d 509; Lovett v Allstate Ins. Co., 86 AD2d 545.)

*80Perhaps more interesting is the question of whether one who engages in the business of performing in commercials can claim a right of privacy (rather than a right of publicity)2 when his picture is used as he originally consented in writing it could be used. The difference in use is not in scope but in time. However, in my view of the situation, it is unnecessary to reach that question.

Birns, Sandler and Fein, JJ., concur; Kupferman, J. P., dissents in part in an opinion.

Judgment, Supreme Court, New York County, entered on January 19, 1981, and order of said court entered on February 17, 1981, affirmed. Respondent shall recover of appellant one bill of $75 costs and disbursements of these appeals.

. See Zacchini v Scripps-Howard Broadcasting Co., 433 US 562, 575-576.

. See Sims, Right of Publicity: Survivability Reconsidered, 49 Fordham L Rev 453 et seq.; Brinkley v Casablancas, 80 AD2d 428.