INDEX NO. 156443/2014 FILED: NEW YORK COUNTY CLERK 03/14/2016 09:58 AM NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 03/14/2016 1 of 2 pleadings shall be liberally construed and that defects shall be ignored if a substantial right of a party is not prejudiced. Thus, the burden is placed upon one who attacks a pleading for de?ciencies in its allegations to show that he is prejudiced. The test of prejudice is to be given primary emphasis. Thereby, the court disregards pleading irregularities, defects, or omissions that are not such as to reasonably mislead one as to the identity of the transactions or occurrences sought to be litigated or as to the nature and elements of the alleged cause or defense. In this case, plaintiff has alleged cause(s) of action alleging a violation of a right to privacy pursuant to New York Civil Rights Law section 50 and 51. The application to dismiss, on grounds that this action is time barred, pursuant to CPLR 321 is denied and granted, in part. Defendants assert that pursuant to CPLR 215(3), plaintiff 5 right of publicity claim was to be commenced within a year from the publication of the offending material. Here, defendants assert that the images in question were published on June 30, 2013 (respecting alleged statements made by defendant Take Two Interactive Software, Inc. [Take Two]) and November 1, 2012 (respecting the ?artworks? in question). Plaintiff asserts that the complaint was filed on July 1, 2014, within a year of the ?re-publication? of the materials in question. In this case, plaintiff asserts that the material in question was re-published on September 17, 2013 and therefore the claims against defendants were timely ?led. Defendants have not been able to prove, at this juncture of the litigation, that the republication exception to the one year statute of limitations is not applicable to this case because the intended audiences were the same as those of the original publication and the images consistently remained the same. Plaintiff speci?cally alleges facts which contend otherwise. The application to dismiss this matter as against defendant, Rockstar North (RN), pursuant to CPLR 321 is denied at this juncture of the litigation. Defendants assert that RN is a foreign corporation incorporated under the laws of the United Kingdom and is not authorized to do business in New York. Plaintiff, however, provided a copy of web-page wherein of?ces are listed as located in the United Kingdom, Canada and the United States, including New York. Based upon the submitted papers, dismissal on these grounds cannot be determined at this stage of the litigation. Accordingly, it is ORDERED that the within pre-answer motion to dismiss, including the application for sanctions, is denied; and it is further ORDERED that the defendants shall answer the amended complaint m?thin 30 days from the date of this order; and it is further ORDERED that the parties appear for a preliminary conference on May 26, 2016 at 9:3 0 am. in Room 304 located at 71 Thomas Street, NYC 10013. 3 JOAN M. KENNEY J.S.C. 20352