Model Claim Of Invasion Of Privacy Survives

The New York Appellate Division for the First Judicial Department revived a cause of action dismissed by the trial court

The second amended complaint of plaintiff, a then-aspiring model, alleges causes of action against two sets of defendants. As against Wilhelmina Models, Inc., the modeling agency that represented her, the claims arise from the conduct of photographers at several photoshoots, occurring when she was 17 years old. As against Cal Tan, LLC and New Sunshine, LLC (collectively, Cal Tan), a seller of suntanning products that hired plaintiff as a model for a print marketing campaign, the claims arise from the conduct of the photography crew at a photoshoot in Mexico, occurring when she was 16 years old. The complaint further includes allegations, as to both defendants, that plaintiff was touched inappropriately by persons participating in these photoshoots. As against both defendants, the complaint alleges a cause of action for invasion of privacy and a cause of action denominated “negligence and breach of fiduciary duty.” Plaintiff alleges an additional cause of action against Wilhelmina for sexual harassment. As to both defendants, for the purposes of revival under CPLR 214-g, plaintiff alleges that their conduct constituted both Penal Law article 130 offenses and a sexual performance under Penal Law § 263.05.

Both defendants moved to dismiss the complaint as barred by the statute of limitations and for failure to state a cause of action, asserting that plaintiff had failed to allege conduct meeting the requirements of the Penal Law that would permit revival of her claims, and thus the claims were time-barred. Cal Tan additionally moved under CPLR 202, asserting that the claims were untimely under the statutes of limitations of both New York and Mexico. Supreme Court granted the motions, finding that the CVA did not apply to acts occurring outside New York State, and that the complaint did not allege “sexual conduct,” as defined by the Penal Law and required for a sexual performance. Plaintiff appeals from that order.

Specifics

Plaintiff’s allegations as to Cal Tan include that she was “instructed . . . to arch her back and look at the camera ‘sexy,’ ‘like a lover,’ and think about doing ‘naughty things with your boyfriend,’” and that the photographs generated from the photoshoot “included ones in which Doe was depicted topless with her back arched in a sexually suggestive pose; looking out to the sea in a sultry manner; in which she was completely topless and ‘naked in the water’; where she is posed suggesting a willingness to engage in sexual activity; and where Doe is standing on a roof, semi- or totally naked.”

As to Wilhelmina, plaintiff alleged that at one photoshoot, “[s]he was photographed in [see-through lingerie] with another girl, also wearing see-through lingerie, together in bed. Doe and the other underage model wore coy expressions, as if together they had been doing something naughty, or sexual;” at another photoshoot, where plaintiff was unclothed, she was “instructed . . . to look ‘innocent, but sexy’ for some photos, and like a ‘bad girl’ for others”; and that at a third photoshoot she “was made to sit nude on a bed with a white sheet covering part, but not all, of her breast and buttocks.”

Disposition

the order of the Supreme Court, New York County (Laurence L. Love, J.), entered on or about October 11, 2022, which, insofar as appealed from as limited by the briefs, granted defendants’ motions to dismiss, should be modified, on the law, to deny the motion of defendant Wilhelmina Models, Inc., and to deny the motion of defendants Cal Tan, LLC and New Sunshine, LLC as to the second cause of action alleging invasion of privacy, and otherwise affirmed, without costs.

(Mike Frisch)