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Howell v. New York Post Co.

Court of Appeals of New York

February 17, 1993, Argued ; April 5, 1993, Decided

No. 68

Opinion

 [*117]  [**700]  [***351]    Chief Judge Kaye.

This appeal, involving a newspaper's publication of plaintiff's  [*118]  photograph without her consent, calls upon us to consider the relationship between two separate but potentially overlapping torts: intentional infliction of emotional distress, and invasion of the right to privacy. 1 

 [****5]  In early September 1988, plaintiff Pamela J. Howell was a patient at Four Winds Hospital, a private psychiatric facility in Westchester County. Her complaint and affidavit (accepted as true on this appeal) allege that it was imperative to her recovery that the hospitalization remain a secret from all but her immediate family.

Hedda Nussbaum was also at that time a patient at Four Winds. Nussbaum was the "adoptive" mother of six-year-old Lisa Steinberg, whose November 1987 death from child abuse generated intense public interest (see, e.g., Matter of New York Times v Rothwax, 143 AD2d 592 [vacating Trial Judge's order barring counsel from discussing case with news media]; see also, People v Steinberg, 79 NY2d 673).

On September 1, 1988, a New York Post photographer trespassed onto Four Winds' secluded grounds and, with a telephoto lens, took outdoor pictures of a group that included Nussbaum and plaintiff. That night, the hospital's medical director telephoned a Post editor requesting that the paper not publish any patient photographs. Nevertheless, on the front page of next days' edition two photographs appeared--one of Nussbaum taken in November 1987, shortly [****6]  after her arrest in connection with Lisa's death, and another of Nussbaum walking with plaintiff, taken the previous day at Four Winds.

In the earlier photograph, Nussbaum's face is bruised and disfigured, her lips split and swollen, and her matted hair is covered with a scarf. By contrast, in the photograph taken at Four Winds, Nussbaum's facial wounds have visibly healed, her hair is coiffed, and she is neatly dressed in jeans, a sweater and earrings. Plaintiff, walking alongside her, smiling, is in tennis attire and sneakers. The caption reads: "The battered face above belongs to the Hedda Nussbaum people remember--the former live-in lover of accused child-killer,  [*119]  Joel Steinberg. The serene woman in jeans at left is the same Hedda, strolling with a companion in the grounds of the upstate psychiatric center where her face and mind are healing from the terrible wounds Steinberg inflicted."

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81 N.Y.2d 115 *; 612 N.E.2d 699 **; 596 N.Y.S.2d 350 ***; 1993 N.Y. LEXIS 658 ****; 21 Media L. Rep. 1273

Pamela J. Howell et al., Appellants, v. New York Post Company, Inc., et al., Respondents.

Prior History:  [****1]   Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 26, 1992, which modified, on the law, and, as modified, affirmed an order of the Supreme Court (Carol E. Huff, J.), entered in New York County, granting a motion by defendants to dismiss the complaint for failure to state a cause of action to the extent of dismissing all causes of action except that for intentional infliction of emotional distress and the derivative claim for loss of consortium, and denying a cross motion by plaintiffs for summary judgment. The modification consisted of dismissing the complaint in its entirety.

 Howell v New York Post Co., 181 AD2d 597, affirmed.

Disposition: Order, insofar as it pertains to the individual defendants, affirmed, with costs.

CORE TERMS

photograph, intentional infliction of emotional distress, privacy, emotional, advertisement, emotional distress, picture, cause of action, outrageous, courts, severe emotional distress, right to privacy, outrageous conduct, real relationship, public interest, inflicted, invasion, trespass, damages

Torts, Intentional Torts, Intentional Infliction of Emotional Distress, General Overview, Elements, Elements, Causation, False Imprisonment, Defamation, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Defenses