New York State Court of Claims

New York State Court of Claims

EULAU v. THE STATE OF NEW YORK, #2009-038-526, Claim No. 116063, Motion No. M-76134


Defendant’s motion for summary judgment on claim seeking damages pursuant to Civil Rights Law §§ 50 and 51 granted. Motion establishes that defendant did not use claimant’s photograph in an advertising campaign, and claimant did not oppose motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Joan Matalavage, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 12, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim alleges that defendant violated Civil Rights Law §§ 50 and 51, which, respectively, prohibit the use of a person’s picture for advertising purposes without his or her written consent, and authorize an action for damages for a violation of that statutory prohibition. The claim alleges that defendant used claimant’s photograph, without his consent, in an extensive multiple media advertising campaign for the New York State Lottery known as the “Little Bit of Luck” campaign. Defendant moves for summary judgment dismissing the claim. Claimant has not submitted opposition to the motion. It is well established that a movant for summary judgment must demonstrate, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Claimant attached to the claim a copy of a newspaper advertisement that depicts a lone character who asks the question “How about a Little Bit More Luck [sic]?” (hereinafter the “Little Bit of Luck” character). Claimant presumably is asserting that he is the person whose picture appears in that advertisement and the “Little Bit of Luck” advertising campaign as the “Little Bit of Luck Character” (see Mamorsky Affidavit, infra). In support of its motion for summary judgment, defendant submits the affidavit of Leo Mamorsky, who is a Group Account Director for DDB Worldwide Communications Group, Inc., the advertising agency that is responsible for the “Little Bit of Luck” advertising campaign. Mamorsky states in the affidavit that an actor named Brett Gelman portrays the “Little Bit of Luck” character, and denies that the image of claimant was used in this campaign. Mamorsky’s affidavit is supported by a copy of Gelman’s Model Release, his Television Talent Union Contract, and tax withholding certificates (W-4s). This affidavit and documentary evidence establish that claimant’s photograph was not used in the “Little Bit of Luck” campaign, and thus, that defendant did not violate Civil Rights Law § 50 with regard to claimant and is entitled to judgment as a matter of law. Inasmuch as claimant has not submitted opposition to the motion, he has not raised any issue of material fact, and defendant’s motion must be granted. Accordingly, it is

ORDERED, that Motion No. M-76134 is GRANTED, and claim No. 116063 is hereby DISMISSED.

March 12, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 116063, filed November 10, 2008;

(2) Verified Answer, filed December 9, 2008;

(3) Notice of Motion, dated January 20, 2009;

(4) Affidavit of Joan Matalavage, AAG, sworn to January 20, 2009, with Exhibits A-B, including the Affidavit of Leo Mamorsky, sworn to January 9, 2009, with Exhibit A;

(5) Affidavit of Service of Motion, sworn to January 22, 2009.