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In a case of apparent first impression in New York state courts, a Manhattan judge has ruled that a right-to-privacy lawsuit initiated by actor Jerry Orbach against Hilton Hotels may continue, Orbach’s death notwithstanding. “[N]othing in the statute or the cases cited precludes his legal representatives from continuing to press the claim he asserted before he died,” Supreme Court Justice Bernard J. Fried wrote in Orbach v. Hilton Hotels, 102061/04, quoting the U.S. Southern District decision in Marx v. Playboy, 1979 US Dist Lexis 13900. At issue in the suit is a video the “Law & Order” star narrated in 1993 to honor the Waldorf-Astoria on its 100th anniversary. Orbach, who did not charge for his narration services, was told the video would be shown only once. He was therefore surprised when, a decade later, his friend checked into the Waldorf-Astoria and saw the video running on the hotel’s in-house cable channel, according to Orbach’s attorney, James B. Fishman. “It was running continuously in every room in the Waldorf for about 10 years,” said Fishman, of Fishman & Neil. The hotel chain also used the video for recruiting staff and soliciting business for their catering department, according to Fishman. Orbach initiated an action against the Waldorf-Astoria’s owner, Hilton Hotels, alleging among other things a violation of New York’s privacy statute, Civil Rights Law. Section 51 of the statute states that any “person whose name, portrait or picture is used within this state for … the purpose of trade without the written consent [of that person] may … sue and recover damages for any injury sustained by reason of such use.” The law has been used in recent years by celebrities Spike Lee and former Miss Universe Linda Bement to prevent the unauthorized use of their names or likenesses for commercial purposes. Shortly after initiating the suit, Orbach died of prostate cancer. His attorney, Fishman, then sent a proposed stipulation and order to Hilton Hotels, seeking to substitute Elaine Orbach, Orbach’s wife and executrix, as the plaintiff. Hilton Hotels, represented by Jonathan Zavin of Loeb & Loeb, rejected the stipulation. Zavin did not return a call seeking comment. Fishman petitioned the court for substitution, and Justice Fried granted the motion. In opposing the motion, Hilton Hotels argued that Orbach’s claim was extinguished upon his death and, therefore, Ms. Orbach could not substitute for him. It cited numerous New York cases in which courts dismissed �51 actions commenced after the death of the plaintiff. Those cases, according to Fried, are not pertinent. Fried instead cited a federal case, Groucho Marx v. Playboy Publications. In that suit, comedian Groucho Marx claimed Playboy Publications and its Oui Magazine used his likeness without his consent in a satire entitled “A Night at the Stateroom,” in March 1977. The pictorial portrayed, among other things, actors in a variety of ostensibly comic poses with naked women. When Marx died mid-litigation, Playboy moved to dismiss the suit. In holding that the claim could continue, the district court relied on New York Estates Powers & Trust Law �11-3.2(b), which states that “[no] cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed.” Lacking relevant precedent from a New York state court, Fried relied on Marx, concluding that if an individual files a �51 action and then dies, his legal representative may substitute as plaintiff. Fishman welcomed the decision. “This never should have required a motion in the first place,” he said. “That’s why we sent them a stipulation. It’s pro forma.”

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