Nussenzweig v. diCorcia

Order, Supreme Court, New York County (Judith J. Gische, J.), entered February 15, 2006, which, to the extent appealed from, as limited by the briefs, granted the motion and cross motion of defendants Philip-Lorca diCorcia and Pace/MacGill, Inc. for summary judgment dismissing the complaint, affirmed, without costs or disbursements.

We agree with Justice Tom’s opinion, for the reasons stated therein, insofar as he concludes that the statute of limitations bars the action. Therefore, we do not reach the issue of whether defendants’ use of plaintiff’s photograph is entitled to First Amendment protection. So doing would contravene the well-established principle that a court should not decide a case on constitutional grounds where it can be resolved on nonconstitutional grounds; a constitutional issue should only be decided where it is unavoidable (see e.g. Matter of Clara C. v William L., 96 NY2d 244, 250 [2001]; Matter of Peters v New York City Hous. Auth., 307 NY 519, 527 [1954]).

An appellate court is “bound ... by principles of judicial restraint not to decide questions unnecessary to the disposition of the appeal” (People v Carvajal, 6 NY3d 305, 316 [2005]). While judicial reluctance to decide a question that need not be reached may be overcome when the public interest requires a determination thereon (see People ex rel. Unger v Kennedy, 207 NY 533, 541 [1913]; Matter of Bell v Waterfront Commn. of N.Y. Harbor, 20 NY2d 54, 61 [1967]), the issue involved here is neither one that typically evades review and is likely to recur nor one that requires a prompt resolution to settle the law (cf. Matter of Avella v Batt, 33 AD3d 77 [2006]). If we were to review the constitutional issue on only a showing that the issue is likely to recur, the exception would swallow the rule.

Finally, we note that no argument can be made that we need reach the constitutional issue to have an alternative ground for the decision in the event that the case is heard by the Court of Appeals and that Court concludes that the statute of limitations in an action based on Civil Rights Law § 51 runs from the last publication of a photograph rather than, as we hold, from the date a photograph is first exhibited. First of all, no appeal as of right may be taken to the Court of Appeals. While an appeal as of right to the Court of Appeals lies “from an order of the appellate division which finally determines an action where there is directly involved the construction of the constitution of the state or of the United States” (CPLR 5601 [b] [1]), “[t]he Court of Appeals interprets the direct-involvement requirement to mandate that the constitutional question be necessarily involved in the decision. Appeal as of right lies only when the record establishes that the construction of the state or federal constitution has been not only directly but necessarily involved in the decision of the case. If the decision was or may have been based upon some other ground, the appeal will not lie” (Weinstein-Korn-Miller, NY Civ Prac ¶ 5601.10 [internal quotation marks omitted]; see also Matter of Haydorn v Carroll, 225 NY 84 [1918]). In the event that leave to appeal to the Court of Appeals is granted and it decides the statute of limitations issue in plaintiffs favor, it can itself address the constitutional question, which has been fully preserved for review. Concur—Friedman, Sullivan and Catterson, JJ.