Professional Documents
Culture Documents
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Aaron M. Goldsmith, Esq.
225 Broadway, Suite 715
New York, NY 10007
For Paramount
and Red Granite:
action
Andrew
Greene
against
(Plaintiff)
defendants
brings
Paramount
this
Pictures
(Docket
Entry
12.)
For
the
following
reasons,
1993
to
1996,
Plaintiff
worked
for
Stratton
Years later, he
Belforts
memoir later served as the basis for the motion picture The Wolf
of Wall Street (the Movie), directed by Martin Scorcese and
starring Leonardo DiCaprio.
Plaintiff regards the Movie as an invasion of his right
of privacy and defamatory under New York law.
He brings this
Plaintiff
turn
over
to
Plaintiff
copies
of
the
Movie
and
any
It provides a
lurid account of Belforts rise and fall and a glimpse into the
3
The
(Memoir at 65.)
(Compl.
For
the most part, the Movies screenplay does track the storyline of
the Memoir.
While purporting to
dialogue
were
dramatization.).)
disclaimer
that
fictionalized
The
[w]ith
or
closing
respect
invented
credits
to
such
for
further
purposes
include
fictionalization
of
a
or
[his]
likeness,
image,
characterization
is
(Compl.
of Jordan Belforts close friends who went to law school and later
moves into a significant leadership position at Stratton Oakmont
upon
Jordan
Belforts
resignation
5
from
[Stratton
Oakmont].
(Compl. 22-25).
Nonetheless, there
(Memoir at 121.)
Kaminsky and
the Swiss banker are later arrested for money laundering in Miami,
Florida.
(Memoir at 338-39.)
Character who arranges the meeting and is later arrested with the
Swiss banker in Miami.
According to Plaintiff, the Movie is defamatory because
it portrays the Koskoff Character as a criminal, drug user,
degenerate, depraved, and/or devoid of any morality or ethics.
(Compl. 30.)
particular.
(Compl. 30.)
augmentation surgery.
(Memoir at 104.)
he
is
engaged
prostitutes at work.
in
drug
use
and
sexual
relations
with
(Compl. 30.)
the
third
cause
of
action
to
assert
an
invasion
of
The second cause of action differs from the first only in that
it does not specifically cite to Section 51 of the New York
Civil Rights Law. In moving to dismiss the Complaint,
Defendants therefore interpret the second cause of action to
assert a common law right of privacy. (See Defs. Br., Docket
Entry 12-1, at 14.) The Court disagrees with Defendants
interpretation. Although the second cause of action does not
specifically mention Section 51, it tracks the language of the
statute and does not indicate that it is based on a right
derived from the common law.
1
7
se,
(Compl.
57-66).
Defendants
move
to
dismiss
the
Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court
Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572
F.3d 66, 7172 (2d Cir. 2009).
Iqbal, 556
8
U.S. at 679.
However, this
See
Chambers v. Time Warner, Inc., 282 F.3d 147, 15253 (2d Cir. 2002)
(citations omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773
(2d Cir. 1991).
II.
Right of Privacy
In the first and second causes of action, Plaintiff
privacy claims should be dismissed because the Movie does not use
Plaintiffs name, portrait, or likeness in a manner sufficient to
9
common law claim on the ground that New York law does not recognize
a common law right of privacy.
The Court
& Pub., 94 N.Y.2d 436, 441, 727 N.E.2d 549, 551, 706 N.Y.S.2d 52,
55 (2000).
Finger v. Omni
Publns Intl, Ltd., 77 N.Y.2d 138, 141, 566 N.E.2d 141, 143, 564
N.Y.S.2d 1014, 1016 (1990).
Section 51
Messenger,
564
omitted).
N.Y.S.2d
at
(emphasis
in
original)
(citation
11
positions
at
Stratton
Oakmont,
make
Plaintiffs
(Compl. 21.)
(Pl.s Opp.
It
as
to
result
in
their
effective
identification);
to
external
Plaintiff
shares
some
sources).
physical
Accordingly,
similarities
even
with
the
assuming
Koskoff
law
of
defamation
serves
to
protect
an
Kavanagh v. Zwilling,
Kavanagh, 997
committing
sexual
and
crimes
drug
and
engaging
activities.
in
outrageous
(Compl.
59,
and
64.)
The
(Compl. 60.)
(Compl. 65.)
(Defs.
be
dismissed
because
the
Movie
concerns
an
arguably
(Defs. Br. at
Defendants
argument
related
to
the
Chapadeau
standard,
but
Of and Concerning
As noted, [a] statement is not libelous unless it is
of
and
concerning
the
plaintiff.
Dalbec
v.
Gentlemans
Companion, Inc., 828 F.2d 921, 925 (2d Cir. 1987) (citation
omitted).
plaintiff.
Warner, Inc., 806 F. Supp. 1157, 1160 (S.D.N.Y. 1992), affd sub
nom., Church of Scientology Intl v. Behar, 238 F.3d 168 (2d Cir.
2001)).
of
Scientology
Intl,
806
F.
Supp.
at
1160);
accord
Gristedes Foods, Inc. v. Poospatuck (Unkechauge) Nation, No. 06CV-1260, 2009 WL 4547792, at *13 (E.D.N.Y. Dec. 1, 2009).
Where, as in this case, the plaintiff claims that he or
she
has
been
defamed
through
the
portrayal
of
fictional
(S.D.N.Y. 1985); see also Fetler v. Houghton Mifflin Co., 364 F.2d
650, 651 (2d Cir. 1966) ([T]he question is whether the libel
designates the plaintiff in such a way as to let those who knew
him understand that he was the person meant.
It is not necessary
This
conclude
that
the
plaintiff
was
the
fictional
character.
F.2d 636, 639-40 (2d Cir. 1980) (same name and similar physical
characteristics
dismiss),
and
found
sufficient
Felter,
364
F.2d
to
withstand
at
651-62
motion
(similar
to
family
(similarities
incidental
in
grooming
name,
habits,
physical
and
height,
recreational
weight,
build,
activities
held
names
characterization
and
occupations
held
insufficient
and
to
very
sketchy
establish
the
physical
of
and
2005).
Further
complicating
the
issue
is
the
simultaneously
assert
that
18
the
character
is
of
and
Springer, 90 A.D.2d at
1987)
(Davis
II),
Defendants
argue
that
even
if
Defendants
therefore contend that [a] reader of the [Memoir] who sees the
[Movie] would know that Nicky Koskoff is a composite, and someone
who has not read the [Memoir] who sees the film would have no basis
to connect Nicky Koskoff to [Plaintiff].
Docket Entry 24, at 6.)
Character
with
Plaintiff.
See
Batra
v.
Wolf,
No.
116059/04, 2008 N.Y. Misc. LEXIS 1933, at (Sup. Ct. N.Y. County
Mar. 14, 2008) (same unique first name, ethnicity, and physical
appearance in an episode of Law & Order depicting a public scandal
held sufficient to present an issue of fact to a jury).
Plaintiff
the
present
procedurally.
motion
to
dismiss,
both
substantively
and
686 (1964).
Id.
hearing
in
connection
with
motion
for
summary
judgment.
In sum, given the alleged similarities between Plaintiff
and Koskoff, and the public nature of Stratton Oakmonts fraud,
Plaintiff has alleged sufficient facts to withstand Defendants
motion to dismiss with respect to the of and concerning element
of Plaintiffs libel claim.
B.
Fault
As noted, the plaintiff in a libel case must also
on
the
status
of
the
21
As
federal
However, in
The
story told in the Memoir, which was later adapted in the Movie,
unquestionably touches on a matter warranting public exposition.
However, as noted, the fifth cause of action only alleges that
Defendants
acted
with
mere
negligence,
22
not
gross
negligence.
(Compl. 65.)
cause of action.
IV.
Leave to Amend
Although Plaintiff has not requested leave to replead,
the
complaint.
usual
practice
is
to
grant
leave
to
amend
the
1999); see also FED. R. CIV. P. 15(a)(2) (The court should freely
give leave [to amend] when justice so requires.).
Leave to amend
244
F.3d
104,
110
(2d
Cir.
For
the
reasons
If
Plaintiff
wishes
to
file
an
amended
complaint
If Plaintiff fails to do
SO ORDERED.
September
30 , 2015
Central Islip, New York
24