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In New York, a telephone conversation may be legally recorded with the knowledge and consent of only one party. In California, all parties need to agree. So what happens when a Californian surreptitiously tapes her conversations with a New Yorker? A Manhattan appellate court addressed that novel question yesterday, deciding that a New Yorker has no privacy claim against a Californian who recorded their phone conversation because the relevant California statute was intended only to protect residents of that state. Writing for a unanimous panel of the Appellate Division, First Department, Justice Joseph Sullivan said the express language of California’s Invasion of Privacy Act “disavowed” any interest in protecting New York residents from having their conversations recorded. To find otherwise, he wrote in Locke v. Aston, 605851/01, would lead to the result that “a New York resident not located in California when his conversation was taped, and with no expectation that a California law would protect him when an analogous New York statute does not, would have greater protection than the California resident, located in California, whose conversation is being recorded from outside the state without his/her consent and for whose protection the California statute was enacted.” The decision will be published Monday. The bi-coastal conversations at issue in the case were between California resident Diana Locke and prominent Manhattan plastic surgeon Sherrell J. Aston. The two had allegedly agreed to collaborate on a book about plastic surgery, but the book was never published. Ms. Locke sued Dr. Aston in Manhattan Supreme Court in 2001 for breach of contract and defamation. In early 2004, she disclosed that she had taped their conversations during the two-year period of their collaboration. The doctor moved for leave to file an amended answer including counterclaims for surreptitious taping under California law. The trial judge, Manhattan Supreme Court Justice Karla Moskowitz, granted the motion, rejecting Ms. Locke’s argument that the California privacy statute only applied to California residents. The appellate court yesterday reversed. The panel, which also included Justices Peter Tom, Eugene Nardellli, James M. Catterson and James M. McGuire, said the language of the privacy law’s preamble clearly stated its intent “to protect the right of privacy of the people of this state.” Justice Sullivan wrote that “there could hardly be a clearer statement of the Legislature’s intent than the language of the Invasion of Privacy statute itself.” Noting that it was undisputed that Dr. Aston lived in New York, practiced in New York and was in New York at the time of his conversations with Ms. Locke, the judge wrote that it was clear the statute did not apply to his situation. The judge also noted that New York looked to the jurisdiction with the greater interest in having its law applied in determining conflict-of-law situations. New York, he said, had the greater interest in protecting Dr. Aston, its citizen and resident, so New York law should apply. The plaintiff, who was represented by Donna Marie Werner of Epstein, Becker & Green, is also embroiled in litigation relating to a work about plastic surgery. She sued the creators of the show “Extreme Makeover” in 2004, claiming they stole her idea. The suit is pending in Los Angeles Superior Court. Dr. Aston, the chairman of the plastic surgery department of the Manhattan Eye, Ear and Throat Hospital and the plastic surgeon of choice for many celebrities and society figures, was represented by John B. Harris of Stillman & Friedman. Anthony Lin can be reached at [email protected]

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