Case No. 522707

New York Supreme Court
Appellate Division—Third Department

CHRISTOPHER PORCO,

Plaintiff-Appellant,

– against –

LIFETIME ENTERTAINMENT SERVICES, LLC.,

Defendant-Respondent.

MOTION FOR LEAVE TO REARGUE OR, IN THE
ALTERNATIVE, FOR LEAVE TO APPEAL TO THE NEW
YORK STATE COURT OF APPEALS

DAVID A. SCHULZ, ESQ.
CAMERON STRACHER, ESQ.
AMY WOLF, ESQ.
LEVINE SULLIVAN KOCH & SCHULZ, LLP
Attorneys for Defendant-Respondent
321 West 44th Street, Suite 1000
New York, New York 10036
(212) 850-6100

Clinton County Clerk’s Index No. 190/13

 SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION, THIRD DEPARTMENT
------------------------------- x
CHRISTOPHER PORCO,
:
:
Index No. 2013/190
Plaintiff,
:
vs.
:
:
LIFETIME ENTERTAINMENT
:
SERVICES, LLC.
:
:
Defendant.
:
------------------------------- x
PLEASE TAKE NOTICE that, upon the accompanying memorandum of
law and the Affirmation of David A. Schulz, sworn to the 3rd day of April, 2017,
and the exhibits annexed thereto, Defendant Lifetime Entertainment Services, LLC
(“Defendant”) will move this Court on April 17, 2017 for an order pursuant to
CPLR § 5602(b)(1) permitting Defendant to re-argue its motion to dismiss the
complaint or, in the alternative, for an order granting Defendant leave to appeal to
the Court of Appeals from the order of this Appellate Division, Third Department,
dated February 23, 2017, denying Defendant’s motion to dismiss, and for any
other or further relief it deems just, proper and necessary.
PLEASE TAKE FURTHER NOTICE that, pursuant to 22 NYCRR § 800.2,
this motion will be submitted on the papers and neither party shall appear for
argument and answering papers, if any, are to be filed no later than the Friday
before the return date of this motion.

 Dated: April 3, 2017

Respectfully submitted,
LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:
David A. Schulz
Cameron Stracher
Amy Wolf
321 West 44th Street
Suite 1000
New York, NY 10036
(212) 850-6100
(212) 850-6299 (fax)
Email: dschulz@lskslaw.com
Counsel for Defendant Lifetime Entertainment
Services, LLC.
TO: Christopher Porco
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
Plaintiff-Appellant Pro Se

 TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
PRELIMINARY STATEMENT ............................................................................... 1
QUESTIONS FOR PRESENTATION UPON REARGUMENT OR FURTHER
APPEAL..................................................................................................................... 3
BACKGROUND AND PROCEDURAL HISTORY ............................................... 3
ARGUMENT ............................................................................................................. 7
I.

REARGUMENT SHOULD BE GRANTED BECAUSE THIS
COURT MISAPPREHENDED THE RECORD FACTS ............................... 7

II.

ALTERNATIVELY, LEAVE TO APPEAL SHOULD BE
GRANTED TO RESOLVE UNSETTLED, CONTROLLING
ISSUES OF LAW .......................................................................................... 10
A.

Leave To Appeal Should Be Granted To Resolve The
Proper Application Of Section 51 ....................................................... 12
1.

The Order conflicts with the holding of Messenger ................. 13

2.

The Order conflicts with the holdings of other courts
since Messenger ........................................................................ 15

3.

The Order anomalously treats an allegedly
“fictionalized” account different from pure fiction
under Section 51........................................................................ 17

B.

Leave Should Be Granted To Allow The Court Of Appeals
To Determine Whether Imposing Liability For “Substantial
Fictionalization” Conflicts With The First Amendment ..................... 19

C.

Leave to Appeal Should Be Granted At This Stage Because
The Issue Of Law Presented Has A Broad Impact On
Protected Expression ........................................................................... 23

CONCLUSION ........................................................................................................ 27

i

 TABLE OF AUTHORITIES
Cases

Page(s)

Abdelrazig v. Essence Commc’ns,
225 A.D.2d 498 (1st Dep’t 1996) ....................................................................... 16
Alfano v. NGHT, Inc.,
623 F. Supp. 2d 355 (E.D.N.Y. 2009) ................................................................ 17
Armstrong v. Simon & Schuster, Inc.,
85 N.Y.2d 373 (1995) ...................................................................................25, 26
Bakery Salvage Corp. v. Maple Leaf Foods, Inc.,
195 A.D.2d 954 (4th Dep’t 1993) ......................................................................... 9
Bement v. N.Y.P. Holdings, Inc.,
307 A.D.2d 86 (1st Dep’t 2003) ...................................................................15, 16
Binns v. Vitagraph Co. of America,
210 N.Y. 51 (1913) .......................................................................................13, 14
Costanza v. Seinfeld,
279 A.D.2d 255 (1st Dep’t 2001) ....................................................................... 18
Cozzani v. Cnty. of Suffolk,
84 A.D.3d 1147 (2d Dep’t 2011) .......................................................................... 8
Creel v. Crown Publ’rs,
115 A.D.2d 414 (1st Dep’t 1985) .................................................................16, 17
Cron v. Hargo Fabrics, Inc.,
91 N.Y.2d 362 (1998) ........................................................................................... 9
Ellsworth v. Town of Malta,
16 A.D.3d 948 (3d Dep’t 2005) ............................................................................ 7
Finger v. Omni Publ’ns Int’l, Ltd.,
77 N.Y.2d 138 (1990) ......................................................................................... 12
Foster v. Svenson,
128 A.D.3d 150 (1st Dep’t 2015) .................................................................21, 25

ii

 Frank v. NBC,
119 A.D.2d 252 (2d Dep’t 1986) ..................................................................16, 18
Frosch v. Grosset & Dunlap, Inc.,
75 A.D.2d 768 (1st Dep’t 1980) ......................................................................... 19
Gravano v. Take-Two Interactive Software, Inc.,
142 A.D.3d 776 (1st Dep’t 2016) ....................................................................... 16
Guglielmi v. Spelling-Goldberg Prods.,
503 P.2d 454 (Cal. 1979) .................................................................................... 22
Hampton v. Guare,
195 A.D.2d 366 (1st Dep’t 1993) ....................................................................... 18
He v. Realty USA,
121 A.D.3d 1336 (3d Dep’t 2014) .................................................................... 7, 8
Hedges v. E. River Plaza, LLC,
43 Misc. 3d 278 (Sup. Ct. N.Y. Cnty. 2013) .................................................. 9, 10
Hicks v. Casablanca Records,
464 F. Supp. 426 (S.D.N.Y. 1978) ...............................................................18, 21
Howell v. N.Y. Post Co.
81 N.Y.2d 115 (1993) ......................................................................................... 12
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) .............................................................................................. 20
Immuno A.G. v. Moor-Jankowski,
145 A.D.2d 114 (1st Dep’t 1989) ....................................................................... 26
Kipper v. NYP Holdings Co.,
12 N.Y.3d 348 (2009) ......................................................................................... 20
Lemerond v. Twentieth Century Fox Film Corp.,
2008 WL 918579 (S.D.N.Y. Mar. 31, 2008) ................................................17, 18
Martin v. Portexit Corp.,
98 A.D.3d 63 (1st Dep’t 2012) ............................................................................. 7

iii

 Mason v. Jews for Jesus,
2006 WL 3230279 (S.D.N.Y. Nov. 8, 2006) ...................................................... 25
Matthews v. Wozencraft,
15 F.3d 432 (5th Cir. 1994) ..........................................................................22, 24
Meeropol v. Nizer,
560 F.2d 1061 (2d Cir. 1977) ............................................................................. 17
Messenger v. Gruner + Jahr Printing & Publishing,
94 N.Y.2d 436 (2000) ..................................................................................passim
Nucci v. Proper,
95 N.Y.2d 597 (2001) ........................................................................................... 9
Phila. Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986) ............................................................................................ 20
Porcelli v. N. Westchester Hosp. Ctr.,
110 A.D.3d 703 (2d Dep’t 2013) ........................................................................ 10
Porco v. Lifetime Entm’t Servs., LLC,
147 A.D.3d 1253 (3d Dep’t 2017) ...............................................................passim
Rogers v. Grimaldi,
695 F. Supp. 112 (S.D.N.Y. 1988) ...............................................................18, 21
Rovello v. Orofino Realty Co.,
40 N.Y.2d 633 (1976) ........................................................................................... 9
Sarver v. The Hurt Locker, LLC,
2011 WL 11574477 (C.D. Cal. Oct. 13, 2011) ............................................22, 24
Seale v. Gramercy Pictures,
949 F. Supp. 331 (E.D. Pa. 1996) ...........................................................22, 23, 24
Sondik v. Kimmel,
33 Misc. 3d 1237(A), 2011 WL 6381452 (Sup. Ct. Kings Cnty.
Dec. 15, 2011) ..................................................................................................... 21
Spahn v. Julian Messner, Inc.,
21 N.Y.2d 124 (1967) ..................................................................................passim

iv

 Stephano v. News Grp. Publ’ns, Inc.,
64 N.Y.2d 174 (1984) ...................................................................................16, 17
Tenney v. Hodgson Russ, LLP,
97 A.D.3d 1089 (3d Dep’t 2012) .................................................................... 8, 10
In re Town of Hempstead,
84 A.D.2d 542 (2d Dep’t 1981) ....................................................................10, 11
Town of Orangetown v. Magee,
218 A.D.2d 733 (2d Dep’t 1995) ..................................................................10, 11
Tyne v. Time Warner Entertainment Co., L.P.,
901 So. 2d 802 (Fla. 2005) ...........................................................................21, 22
United States v. Alvarez,
132 S. Ct. 2537 (2012) ........................................................................................ 20
Weissblum v. Mostafzafan Found. of N.Y.,
60 N.Y.2d 637 (1983) ......................................................................................... 10
Wiggins & Kopko, LLP v. Masson,
116 A.D.3d 1130 (3d Dep’t 2014) ........................................................................ 8
Statutes & Rules
N.Y. Civ. Rights Law § 51 ...............................................................................passim
N.Y. CPLR
§ 2221(d)(2) .......................................................................................................... 7
§ 5602(b)(1) ........................................................................................................ 10

v

 PRELIMINARY STATEMENT
Defendant-Respondent Lifetime Entertainment Services, LLC (“Lifetime”)
respectfully submits this memorandum in support of its motion for re-argument of
this Court’s Decision and Order entered February 23, 2017 (the “Order”) or,
alternatively, for leave to appeal to the Court of Appeals controlling issues of law
that merit review at this stage.
The Order reverses a CPLR § 3211(a)(7) dismissal, and holds that plaintiff
Christopher Porco (“Porco”) sufficiently alleged facts demonstrating “substantial
fictionalization” in a movie about his prosecution for murder to state a cause of
action under Civil Rights Law § 51 (“Section 51”). To reach this conclusion, this
Court relied entirely on a letter written by a third-party that Porco did not reference
in his Complaint, cite in opposing dismissal, or invoke anywhere on this appeal,
and that constitutes inadmissible hearsay.
The Court mistakenly believed the letter’s author at CBS was “associated
with” Lifetime’s film, but there is nothing to suggest that she knew anything about
the contents of that film. The Complaint itself alleges no facts at all demonstrating
falsification, and no inference of fictionalization can reasonably be drawn from a
letter by an unknowledgeable third-party. Although the Court appropriately gave
plaintiff’s Complaint the “benefit of every reasonable inference,” no such

1

 deference should attach to this inadmissible letter. Re-argument should be
permitted on this issue that was not addressed in the briefing.
In the alternative, the Court should grant Lifetime leave to appeal to the
Court of Appeals because the Order construes an earlier decision by that Court on
the scope of Section 51 in a manner that directly conflicts with the holdings of
other Appellate Departments and of the federal courts in New York. The Court of
Appeals should be permitted to resolve at this stage this conflict over the scope of
Section 51 because it has an immediate impact beyond the parties to this case. See
Affirmation of David A. Schulz (“Schulz Aff.”) ¶¶ 5-7.
Further review should also be granted to allow the Court of Appeals to
address the continuing validity of its 50-year old ruling that this Court relied upon
in dismissing the significant constitutional concerns flowing from its reading of
Section 51. That antiquated precedent conflicts with multiple rulings handed down
by the U. S. Supreme Court over the intervening decades that extend First
Amendment protection to imprecise and fictionalized forms of expression. As
construed by the Order, Section 51 plainly violates that constitutional protection.
While leave to appeal a non-final order is only appropriate in limited
circumstances, the substantial statutory and constitutional issues presented here
uniquely warrant review. Resolution of these issues will not be aided by further
development of the factual record and can completely dispose of this lawsuit.

2

 Moreover, unnecessarily permitting this case to continue will impose a substantial
chilling impact on protected expression. The cost, burden and uncertainty of
continuing litigation will impact not only Lifetime, but the expression of an entire
industry dedicated to producing films that explain newsworthy events and educate
the public. Id. ¶ 5.
QUESTIONS FOR PRESENTATION
UPON REARGUMENT OR FURTHER APPEAL
1.

Does the inadmissible, conclusory hearsay of a non-party suffice to

support a finding that plaintiff has alleged facts demonstrating the “substantial
fictionalization” of a newsworthy event?
2.

Does Messenger v. Gruner + Jahr Printing & Publishing, 94 N.Y.2d

436 (2000), allow liability to be imposed under Civil Rights Law § 51 for the use
of a plaintiff’s name in a “substantially fictionalized” movie about a newsworthy
event, where the movie is not an advertisement in disguise and the plaintiff bears a
real relationship to the newsworthy events depicted in the movie?
3.

If so, does the First Amendment prohibit such an interpretation of

Section 51?
BACKGROUND AND PROCEDURAL HISTORY
As the Court is aware, Porco was convicted by a jury in Orange County of
murdering his father and severely maiming his mother with an ax while they slept
at home in their bed. R5, 31. His prosecution and conviction received extensive
3

 news coverage due to the nature of the crime, the prominent position of Porco’s
father, and the heart-rending fact that his mother initially identified Porco as her
attacker but later sought to recant her identification. R8.
Lifetime acquired the rights to a film that was made about Porco’s crime (the
“Film”). Id. Porco objected to the Film and filed this lawsuit seeking declaratory
and injunctive relief under Section 51, id., which creates a cause of action for the
unauthorized use of a person’s name “for advertising purposes or for the purposes
of trade.” N.Y. Civ. Rights Law § 51. The Complaint alleges that Porco’s name
was used without consent in a “knowing and substantially fictionalized account” of
his crime. R17 ¶ 7.
In an initial round of motion practice and an earlier interlocutory appeal,
Porco unsuccessfully sought a preliminary injunction to prevent the national
television premier of the Film on March 25, 2013. See R20-59. During those
proceedings, Porco indicated he would likely amend his Complaint after the Film
was televised to add a claim for money damages. Schulz Aff., Ex. 4 at 2.
Therefore, when the case returned to the Supreme Court after the broadcast,
Lifetime asked that Porco be required to file any amendment before a motion to
dismiss was litigated. Id., Ex. 5. Porco responded that he might well “amend” his
pleading at some point, but objected to doing so before litigating a motion to
dismiss, “primarily for tactical reasons.” Id., Ex 6.

4

 Thereafter, Lifetime moved to dismiss the un-amended Complaint pursuant
to CPLR § 3211(a)(7). R11-12. The Supreme Court granted that motion, finding
that the Complaint failed to state a cause of action under Section 51. R5-9.
“While plaintiff includes the perfunctory allegations that defendant used his name
for purposes of advertising and trade,” the court wrote, “his description of the
movie demonstrates quite the opposite.” R8. The court held that the Film
addressed a newsworthy subject, noting that Porco even “admits in the opening
paragraphs of the complaint” that his trial was “covered extensively by the media.”
Id. The court rejected Porco’s claim that the newsworthy exception to Section 51
did not apply because the Film allegedly was “substantially fictionalized.” Id. As
the court explained, the Complaint made no allegation that Lifetime “invented a
biography of [Porco’s] life or wholly imagined the events at issue in an attempt to
trade on his persona,” nor did it allege that the Film was “so infected with fiction,
dramatization or embellishment” that “the purpose of the newsworthiness
exception” did not apply. R8-9.
By Order dated February 23, 2017 this Court reversed. Porco v. Lifetime
Entm’t Servs., LLC, 147 A.D. 3d 1253 (3d Dep’t 2017) (pursuant to 22 NYCRR
§ 800.2(a), a copy of the Order is attached for reference as Schulz Aff., Ex. 2).
That Order first notes Porco’s burden to allege facts sufficient to demonstrate the
existence of a cognizable legal theory for his Section 51 claim. Id. at 1254. While

5

 Porco alleged that the Film used his name without authorization, the Order
recognizes that Section 51 does not impose liability for such use in “‘reports of
newsworthy events or matters of public interest.’” Id. (citation omitted).
The Order then turns to Porco’s effort to avoid the newsworthiness
exception to liability by alleging that the Film was “substantially fictionalized.”
His Complaint alleges no facts to support this conclusory claim, but the Order
found this defect cured by a hearsay statement in a letter written to Porco’s mother
by a CBS producer. Id. at 1255; R16-19. This ultimately dispositive letter was
never cited by Porco nor addressed by the parties, but had made its way into the
record on Porco’s earlier request for a temporary restraining order.
The letter sought the cooperation of Porco’s mother with a documentary that
would provide a “platform for your family to state their position in a non-fictional
program after the Lifetime movie airs.” R51. The Order infers from this reference
to a “non-fictional” documentary that the CBS producer must have considered the
Lifetime Film “a fictitious program.” Porco, 147 A.D.3d at 1255. It then holds, in
light of the letter, that plaintiff sufficiently alleged “the same degree of
fictionalization” that was found to violate Section 51 without “running afoul of
constitutional protections” in Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 129
(1967). Porco, 147 A.D.3d at 1255-56.

6

 ARGUMENT
I.
REARGUMENT SHOULD BE GRANTED BECAUSE
THIS COURT MISAPPREHENDED THE RECORD FACTS
A motion to reargue should be granted upon a showing that the Court
“overlooked or misapprehended” relevant facts or law. CPLR § 2221(d)(2); see
Martin v. Portexit Corp., 98 A.D.3d 63, 65 (1st Dep’t 2012) (motion for reargument properly granted where court overlooked arguments in motion papers);
Ellsworth v. Town of Malta, 16 A.D.3d 948, 949 (3d Dep’t 2005) (affirming order
of Supreme Court granting motion to reargue and dismissing petition where factual
information upon which it relied was inaccurate). Re-argument should be granted
here because the Court misapprehended the true nature of a letter that was never
briefed by the parties but became the sole basis for the Court’s conclusion that
Porco had sufficiently alleged facts demonstrating a “degree of fictionalization”
violating Section 51.
As the Order recognizes, to determine whether Porco’s Complaint survived
Lifetime’s motion under CPLR § 3211, the Court was obligated to “accept as true
the allegations contained therein, accord the plaintiff the benefit of every favorable
inference, and determine only whether the facts alleged fit within any cognizable
legal theory.” Porco, 147 A.D.3d at 1254 (quoting He v. Realty USA, 121 A.D.3d
1336, 1339 (3d Dep’t 2014) (emphasis added), leave to appeal dismissed in part,

7

 denied in part, 25 N.Y.3d 1018 (2015)). The problem with Porco’s Complaint,
which the Order also recognizes, is that it alleges only the unvarnished conclusion
that the challenged Film is a “substantially fictionalized account” of the
newsworthy events it depicts. R17 ¶ 7. Alleging this conclusion is plainly
insufficient. Tenney v. Hodgson Russ, LLP, 97 A.D.3d 1089, 1090 (3d Dep’t
2012) (“bare legal conclusions… are not entitled to any such consideration”
(citations omitted)); Wiggins & Kopko, LLP v. Masson, 116 A.D.3d 1130, 1131-32
(3d Dep’t 2014) (same); Cozzani v. Cnty. of Suffolk, 84 A.D.3d 1147, 1147 (2d
Dep’t 2011) (dismissing complaint alleging conduct violating plaintiff’s
constitutional rights that was “wholly unsupported by any allegations of fact
identifying the nature of that conduct”). Indeed, the deficiency is only magnified
by Porco’s refusal to amend his Complaint when offered the opportunity to do so.
See Schulz Aff., Ex. 6.
The Court nonetheless found this otherwise fatal defect to be cured by a
letter to Porco’s mother from a field producer working on a separate CBS
documentary, which it read to imply that the producer considered the Film a
“fictitious program.” Porco, 147 A.D.3d at 1255. In reaching this conclusion, the
Court mistakenly viewed the letter as “written by a producer associated with the
film,” id., even though CBS and Lifetime are separate, independent companies.
The Court also overlooked that there is nothing to suggest that the CBS producer

8

 had viewed the Film or possessed any specific information at all about its content.
Without such knowledge, there can be no reasonable basis to rely upon the letter.
And without a leap of logic, there is no reasonable basis to construe its hearsay
reference to a “non-fictional” CBS documentary as implying that the never-seen
Lifetime Film itself was fictional. Seen in proper context, the letter is irrelevant to
the adequacy of Porco’s pleading.
Beyond the substantive factual confusion on which the Order rests, a
procedural issue also warrants re-argument. A plaintiff may of course submit
affidavits “‘to remedy defects in the complaint’ and ‘preserve inartfully pleaded,
but potentially meritorious claims.’” Cron v. Hargo Fabrics, Inc., 91 N.Y.2d 362,
366 (1998) (quoting Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976)).
But the CBS letter is not an affidavit; it is classic, inadmissible hearsay. See Nucci
v. Proper, 95 N.Y.2d 597, 602 (2001) (“out of court statements offered for the
truth of the matters they assert are hearsay”). The letter was never referenced in
Porco’s pleadings, provides no competent evidence, and was not properly
considered in opposition to a motion to dismiss. E.g., Bakery Salvage Corp. v.
Maple Leaf Foods, Inc., 195 A.D.2d 954, 955 (4th Dep’t 1993) (newspaper article
submitted by plaintiff constituted “double hearsay” and was not competent
evidence sufficient to defeat a motion to dismiss); accord Hedges v. E. River
Plaza, LLC, 43 Misc. 3d 278, 281-82 (Sup. Ct. N.Y. Cnty. 2013) (noting that

9

 plaintiffs may submit “admissible evidence” to oppose a motion to dismiss), aff’d,
126 A.D.3d 582 (2015).
As the Supreme Court correctly found, Porco’s “perfunctory” allegation that
the Film about a newsworthy event was “substantially fictionalized,” is insufficient
to state a claim under Section 51. R8. Porco alleges only this bald legal
conclusion, and that does not suffice. Tenney, 97 A.D.3d at 1090.
On this record, the Court should grant re-argument, vacate its Order, and
affirm the Supreme Court’s dismissal of Porco’s Complaint. See Weissblum v.
Mostafzafan Found. of N.Y., 60 N.Y.2d 637, 638-39 (1983) (granting re-argument,
vacating prior decision, and reversing decision of Appellate Division); Porcelli v.
N. Westchester Hosp. Ctr., 110 A.D.3d 703 (2d Dep’t 2013) (granting re-argument,
vacating prior decision, and substituting new decision in its place).
II.
ALTERNATELY, LEAVE TO APPEAL SHOULD BE GRANTED
TO RESOLVE UNSETTLED, CONTROLLING ISSUES OF LAW
If re-argument is not granted, Lifetime should be permitted to appeal to the
Court of Appeals. Pursuant to CPLR § 5602(b)(1), this Court may grant leave to
appeal “from an order of the appellate division which does not finally determine an
action,” and leave should be granted in this case because “questions of law have
arisen which ought to be reviewed by the Court of Appeals.” Town of Orangetown

10

 v. Magee, 218 A.D.2d 733, 734 (2d Dep’t 1995); In re Town of Hempstead, 84
A.D.2d 542, 542 (2d Dep’t 1981).
Leave ought to be granted here because the Order presents the purely legal
question of whether Messenger can be read to permit a claim under Section 51
based on the alleged “substantial fictionalization” of a newsworthy event. This
Court’s Order holds that it does. It finds that a claim of “substantial
fictionalization” can defeat the newsworthy bar to Section 51 liability, even where
a plaintiff has a real relationship to the newsworthy event depicted in a Film that is
not an “advertisement in disguise.” Porco, 147 A.D.3d at 1255-56. This reading
of Messenger conflicts directly with the holdings of other Departments and of the
federal courts.
Leave is also warranted to review the Order’s further conclusion that no
First Amendment issue is raised by imposing liability on speech in this manner.
That holding is based solely on the 1967 Court of Appeals ruling in Spahn. Id. at
1255. But the holding directly conflicts with the constitutional protection
repeatedly afforded to false and fictionalized speech by the United States Supreme
Court during the five decades since Spahn was decided. Given the Order’s broad
chilling impact on First Amendment-protected-expression, further review of these
unresolved legal issues at this stage is warranted.

11

 A.

Leave To Appeal Should Be Granted To
Resolve The Proper Application Of Section 51
The Court of Appeals repeatedly has underscored the narrow, commercial

focus of Section 51. It “prohibit[s] the use of pictures, names or portraits for
advertising purposes or for the purposes of trade only, and nothing more.” Finger
v. Omni Publ’ns Int’l, Ltd., 77 N.Y.2d 138, 141-142 (1990) (internal marks and
citations omitted). Section 51 is “strictly limited to nonconsensual commercial
appropriations.” Messenger, 94 N.Y.2d at 441 (citation omitted).
The Court of Appeals has also recognized a “newsworthiness” exception to
liability under Section 51, an exception that must be broadly construed to protect
“‘constitutional values in the area of free speech.’” Id. (quoting Howell v. N.Y.
Post Co. 81 N.Y.2d 115, 123 (1993)). To mediate the tension between the
protection of speech and the narrow commercial objective of Section 51, two
limited exceptions have been recognized to the exclusion of newsworthy material
from the reach of the statute. These are when the newsworthy material (1) is “an
advertisement in disguise,” or (2) bears no “real relationship” to the person whose
name or likeness is used. Id.
Porco does not dispute that the Lifetime movie depicts a newsworthy event,
and he does not contend that either of these two exceptions apply. R8. Porco
makes no claim that the movie is an advertisement in disguise or that his name has
no real relationship to the events portrayed. The movie accurately recounts in a
12

 dramatized fashion the true material facts of Porco’s crime and the basis for his
conviction, as drawn from police and court records, trial transcripts and interviews
of the key players. See Affidavit of David Sternbach, dated May 20, 2013 (Schulz
Aff., Ex. 3).
The Order instead accepts Porco’s argument that a third exception to the
“substantial fictionalization” of a newsworthy event was articulated more than a
century ago in Binns v. Vitagraph Co. of America, 210 N.Y. 51 (1913), and
followed in Spahn in 1967. Those hoary cases found Section 51 liability for such a
“material and substantial falsification” that the plaintiffs “had virtually no
association with the subject” of the publication. Spahn, 21 N.Y.2d at 127. As
Messenger later confirmed, they create no third exception but rather fit squarely
within the newsworthiness exception for use of a plaintiff’s name that bears no
“real relationship” to the published account, something Porco does not allege here.
1.

The Order conflicts with the holding of Messenger.

In Messenger, the Second Circuit certified to the Court of Appeals the
precise question of whether Section 51 imposed liability for the “substantially
fictionalized” use of a person’s image in a newsworthy magazine column.
Messenger, 94 N.Y.2d at 440. The Court answered this question “in the negative.”
Id. at 441. Messenger squarely holds that even a “substantially fictionalized” use
of a person’s image in a newsworthy article is not actionable under Section 51 so

13

 long as there is a real relationship between the image and the article, and the article
is not an “advertisement in disguise.” Id. at 444-45.
Notwithstanding this holding, the Order construes Messenger as recognizing
a “substantial fictionalization” exception to newsworthiness because Messenger
does not overrule Binns or Spahn. But the Messenger Court found “no inherent
tension” between those cases and its other Section 51 decisions that identify just
two exceptions to newsworthiness — “the existence of a ‘real relationship’ and
whether the work is an advertisement in disguise.” Id. at 446. Messenger found
Binns and Spahn to have been correctly decided within the first exception because
they involved such entirely “invented biographies of plaintiffs’ lives” that the
plaintiffs bore no real relationship to the published works. Id. As the Messenger
dissent underscored, the holding in Messenger rendered any argument about a
substantial fictionalization exception to newsworthiness a “dead letter.” Id. at 449
(Bellacosa, J., dissenting).
Indeed, the Messenger opinion leaves no doubt that “substantial
fictionalization” is not an independent exception to newsworthiness under Section
51. It explains that such an exception would allow liability to be imposed under
Section 51 for creating false impressions about a plaintiff, rather than for using a
plaintiff’s name, image or likeness without authorization to advertise a product or
imply an endorsement. A “substantial fictionalization” exception would render

14

 Section 51 “indistinguishable from the common-law tort of false light invasion of
privacy,” a tort that New York does not recognize. Id. at 448.
In allowing a claim based solely upon “substantial fictionalization,” the
Order thus conflicts directly with Messenger. Porco does not allege that he has no
“real relationship” to the events depicted in the Film, or that the Film is an
advertisement in disguise. R8. Under Messenger, Porco has stated no Section 51
claim, even if his Complaint does sufficiently allege “substantial fictionalization.”
Whether a Section 51 claim can exist after Messenger based upon an allegation of
“substantial fictionalization” presents a controlling issue of disputed law that
warrants resolution by the Court of Appeals.
2.

The Order conflicts with the holdings of other courts since
Messenger.

This Court’s conclusion that a “substantial fictionalization” exception exists
under Messenger conflicts directly with the holdings of other Appellate
Departments and the federal courts. For example, in Bement v. N.Y.P. Holdings,
Inc., 307 A.D.2d 86 (1st Dep’t 2003), the First Department rejected a Section 51
fictionalization claim based upon the use of plaintiff’s name and likeness in a
newspaper account of a planned film of her life story. As Porco does here, plaintiff
alleged that the film itself substantially fictionalized her biography, and further
alleged that the newspaper account of the film knowingly republished the fictions.
Id. at 89-91. The First Department found this insufficient.
15

 Applying Messenger, the First Department dismissed the claim because the
subject of the article was newsworthy and plaintiff’s image bore a real relationship
to the article. “The motion court erred,” the Appellate Division held, by
“incorporating material and substantial falsification analysis into its
newsworthiness analysis of the issues.” Id. at 90. Unless the use of plaintiff’s
image was an advertisement in disguise or bore no relationship to the article,
plaintiff could not proceed with her Section 51 claim. See also Gravano v. TakeTwo Interactive Software, Inc., 142 A.D.3d 776, 777 (1st Dep’t 2016) (no Section
51 claims arising from alleged use of plaintiffs’ images as “avatars” in video game
because game did not constitute “advertising” or “trade”), leave to appeal granted,
28 N.Y.3d 915 (2017); Frank v. NBC, 119 A.D.2d 252, 254-56 (2d Dep’t 1986)
(rejecting Section 51 claim based on fictionalized use of plaintiff’s name and
“physical resemblance” in a Saturday night live skit); Abdelrazig v. Essence
Commc’ns, 225 A.D.2d 498, 498 (1st Dep’t 1996) (no Section 51 claim for use of
picture of plaintiff in “African garb” to illustrate “fashion trends in the Black
community” because “it cannot be said, as a matter of law, that there is no ‘real
relationship’ between the article . . . and the photograph”); Stephano v. News Grp.
Publ’ns, Inc., 64 N.Y.2d 174, 179-86 (1984) (no Section 51 claim for use of a
picture of plaintiff wearing leather bomber jacket in column about “new and
unusual products and services” which the court found was “generally devoted to

16

 newsworthy items”); Creel v. Crown Publ’rs, 115 A.D.2d 414, 415-16 (1st Dep’t
1985) (no Section 51 claim for photograph “utilized to illustrate a guide book
which disseminated information concerning a matter of public interest”).
Federal courts, too, have concluded that Section 51 does not apply to claims
based on the fictionalization of matters that are newsworthy. See, e.g., Meeropol v.
Nizer, 560 F.2d 1061, 1064-68 (2d Cir. 1977) (no Section 51 claim for a
fictionalized account of Julius and Ethel Rosenberg trial); Alfano v. NGHT, Inc.,
623 F. Supp. 2d 355, 356-61 (E.D.N.Y. 2009) (no Section 51 claim for
unauthorized use of plaintiff’s image to illustrate a docudrama about organized
crime in a manner that falsely suggested plaintiff was a member of the mafia);
Lemerond v. Twentieth Century Fox Film Corp., 2008 WL 918579, at *3
(S.D.N.Y. Mar. 31, 2008) (no Section 51 claim because mock-documentary Borat
is newsworthy even though it employs “a brand of humor that appeals to the most
childish and vulgar in its viewers”).
Leave to appeal should be granted to allow the Court of Appeals to resolve
these conflicting views about the proper scope and application of Section 51.
3.

The Order anomalously treats an allegedly “fictionalized”
account different from pure fiction under Section 51.

This Court’s Order also warrants further review because it contradicts the
manner in which Section 51 is applied to works of pure fiction. Section 51 is
uniformly construed to exempt from liability works of pure fiction, but the Order
17

 permits liability for the allegedly “substantial fictionalization” of a newsworthy
event. This distinction makes no sense given the language of Section 51 and the
purposes for which it was enacted.
It is well settled that the use of a person’s name in a work of pure fiction or
satire does not give rise to a claim under Section 51, so long as it is not an
advertisement in disguise. The use of a name in such creative works is not
considered to constitute a use “for purposes of trade” within Section 51, and
fictional works are plainly protected by the First Amendment. E.g., Costanza v.
Seinfeld, 279 A.D.2d 255, 255-56 (1st Dep’t 2001) (no claim for use of plaintiff’s
persona in television comedy); Hampton v. Guare, 195 A.D.2d 366, 366-67
(1st Dep’t 1993) (affirming dismissal of Section 51 claim arising from play
inspired by plaintiff’s crimes because works of fiction do not fall under the scope
of the statute); Frank, 119 A.D.2d at 256 (no claim for use of plaintiff’s name in a
Saturday Night Live skit); Lemerond, 2008 WL 918579, at *1-3 (no claim arising
from depiction of plaintiff in film involving fictional character Borat); Rogers v.
Grimaldi, 695 F. Supp. 112, 124 (S.D.N.Y. 1988) (no claim for use of Ginger
Roger’s name in title of fictional film), aff’d, 875 F.2d 994 (2d Cir. 1989); Hicks v.
Casablanca Records, 464 F. Supp. 426, 430-33 (S.D.N.Y. 1978) (no claim for
fictionalized depiction of plaintiff in a novel).

18

 The same reasoning that excludes Section 51 liability for purely fictional
expression should compel the conclusion that the fictionalization of a true
newsworthy event equally fails to give rise to a claim. Neither the wording of
Section 51nor its legislative purpose supports the drawing of a distinction between
these two forms of expression. The First Department made just this point in
affirming the dismissal of a Section 51 claim in Frosch v. Grosset & Dunlap, Inc.,
75 A.D.2d 768 (1st Dep’t 1980). The claim arose from publication of a book that
allegedly fictionalized the life of Marilyn Monroe. As the first Department put it:
[I]t does not matter whether the book is properly described as
a biography, a fictional biography, or any other kind of literary
work. It is not for a court to pass on literary categories or
literary judgment. It is enough that the book is a literary work
and not simply a disguised commercial advertisement for the
sale of goods or services.
75 A.D.2d at 769.
Leave to appeal is also warranted so that the Court of Appeals can address
the anomaly created by the disparate treatment of pure fiction and fictionalized
news under Section 51.
B.

Leave Should Be Granted To Allow The Court Of Appeals
To Determine Whether Imposing Liability For “Substantial
Fictionalization” Conflicts With The First Amendment
The Court of Appeals in Messenger did not need to address the

constitutional issues raised by imposing Section 51 liability on a fictionalized
account, because Messenger rejected fictionalization as a basis for liability. This

19

 Court’s Order thus relies solely on the 1967 decision in Spahn rejecting a
constitutional defense to Section 51 liability. Porco, 147 A.D.3d at 12555.
Substantial doubt exists as to the continuing validity of this holding considering
subsequent U.S. Supreme Court rulings that protect false speech and bar states in
various contexts from imposing restrictions on newsworthy speech that is not
literally correct in every respect. Leave to appeal should be granted to allow the
Court of Appeals to address this overarching issue as well.
As the U.S Supreme Court recently held, some false statements must be
protected “if there is to be an open and vigorous expression of views in public and
private conversation, expression the First Amendment seeks to guarantee.” United
States v. Alvarez, 132 S. Ct. 2537, 2544 (2012). This holding follows several
rulings in the 50 years since Spahn was decided that limit a state’s ability to punish
inaccurate statements and fictionalizations in various contexts. See, e.g., Phila.
Newspapers, Inc. v. Hepps, 475 U.S. 767, 778-779 (1986) (to avoid chilling true
speech on matters of public concern, “the Court has been willing to insulate even
demonstrably false speech from liability”); Hustler Magazine, Inc. v. Falwell, 485
U.S. 46, 52 (1988) (rule imposing “strict liability on a publisher for false factual
assertions would have an undoubted ‘chilling’ effect on speech”); accord Kipper v.
NYP Holdings Co., 12 N.Y.3d 348, 355 (2009) (First Amendment requires that
“publishers must have sufficient ‘breathing space’” (citations omitted)).

20

 To impose liability under Section 51 when a newsworthy story is retold in
dramatic fashion would contravene the First Amendment protection recognized in
these holdings, as other courts have already recognized. See Foster v. Svenson,
128 A.D.3d 150, 156 (1st Dep’t 2015) (newsworthy exception to Section 51
necessary to protect “literary and artistic expression”); Hicks, 464 F. Supp. at 43133 (First Amendment barred Section 51 claim arising from fictionalized use of
Agatha Christie name and character); Sondik v. Kimmel, 33 Misc. 3d 1237(A),
2011 WL 6381452, at *4 (Sup. Ct. Kings Cnty. Dec. 15, 2011) (noting that
“serious First Amendment concerns” would require dismissal even if Section 51
applied in the entertainment context and newsworthy exception did not apply),
aff’d, 131 A.D.3d 1041 (2d Dep’t 2015); Rogers, 695 F. Supp. at 124 (claim for
use of Ginger Roger’s name in title of film precluded under the First Amendment
as the title was related to the content of the fictional film).
Appellate courts around the country have reached similar conclusions about
the First Amendment protection of dramatic depictions of newsworthy events. For
example, in Tyne v. Time Warner Entertainment Co., L.P., 901 So. 2d 802 (Fla.
2005), plaintiffs brought suit for misappropriation arising from defendants’ use of
their names in the book and film The Perfect Storm. The film was a dramatized
account of true events that took fictional liberties with plaintiffs’ biographies,
relationships and depictions. Id. at 804. After plaintiffs’ complaint was dismissed,

21

 the Eleventh Circuit certified to the Florida Supreme Court the question of the
applicability of Florida’s misappropriation statute. In answering the certified
question, the Florida court noted that right of publicity claims have generally been
limited to the promotion of a product or service; in the context of an expressive
work, however, whether “‘factual and biographical or fictional’” the First
Amendment bars such claims altogether. Id. at 810 (quoting Guglielmi v. SpellingGoldberg Prods., 503 P.2d 454, 461-61 (Cal. 1979) (Bird, C.J., concurring)).
The same conclusion was reached by the California Supreme Court in
Guglielmi. Plaintiff in that case brought a misappropriation claim on behalf of the
actor Rudolph Valentino, for the use of his name, likeness, and personality in a
film that allegedly was a “fictionalized version” of Valentino’s life. 603 P.2d at
455. In an opinion joined by the majority of the court, Chief Justice Bird rejected
plaintiff’s contention that the film was not entitled to constitutional protection
because it was fictionalized and falsely portrayed Valentino’s life. Put bluntly,
“entertainment is entitled to the same constitutional protection as the exposition of
ideas.” Id. at 458-59 (Bird, C.J., concurring). See also Matthews v. Wozencraft, 15
F.3d 432, 438 n.5, 440 (5th Cir. 1994) (constitution protects use of persona in
novel); Sarver v. The Hurt Locker, LLC, 2011 WL 11574477, at *6-7 (C.D. Cal.
Oct. 13, 2011) (First Amendment protects use of plaintiff’s name and likeness in
allegedly fictionalized account of his life), aff’d sub nom. Sarver v. Chartier, 813

22

 F.3d 891 (9th Cir. 2016); Seale v. Gramercy Pictures, 949 F. Supp. 331, 337 (E.D.
Pa. 1996) (constitution protects use of plaintiff’s persona in dramatized film about
Black Panthers).
The continuing viability of Spahn’s constitutional analysis of Section 51
liability is substantially in doubt, and this issue, too, warrants review by the Court
of Appeals.
C.

Leave to Appeal Should Be Granted At
This Stage Because The Issue Of Law Presented
Has A Broad Impact On Protected Expression
Leave for the appeal should be granted at this stage because the legal issues

presented threaten a broad, chilling impact on Lifetime’s expression and the
expression of many others.
If, as the holding of this Court concludes, an allegation of “substantial
fictionalization” is sufficient under Messenger to state a Section 51 claim against a
biographical movie, nearly every dramatic depiction of a newsworthy event could
be subjected to litigation, discovery and the uncertainty of a trial over the uncertain
issue of the level of fictionalization that Section 51 permits. The holding directly
impacts the production of movies based on the newsworthy experiences of living
individuals, such as the Academy Award nominated films Argo (based on the story
of the escape of American hostages in Iran), The Wolf of Wall Street (based on the
life of stockbroker Jordan Belfort, imprisoned for fraud), Milk (based on the life of

23

 gay rights activist and politician Harvey Milk), Charlie Wilson’s War (based on the
story of U.S. Congressman Charlie Wilson and his work with the CIA) and The
Bang-Bang Club (based on the story of four photojournalists documenting the
Apartheid era in South Africa).
Newsworthy stories of real people are regularly told in a dramatized fashion
through film. Countless forms of modern expression include plots that are an
accurate historical depiction, but where some characters are composites, some of
the conversations invented and time is compressed. These practices allow
television shows, movies and plays to educate, entertain and inspire the viewing
public by drawing on actual events and figures.
The continued presence and popularity of these works reflects the important
public interest served by this form of expression. And whether one calls it history,
art, docudrama, “based on” or “inspired by,” works of this type have always
received First Amendment protection. See, e.g., Matthews, 15 F.3d at 438 n.5, 440
(constitution protects use of persona in novel); Sarver, 2011 WL 11574477, at *6-7
(First Amendment protects use of plaintiff’s name and likeness in allegedly
fictionalized account of his life); Seale, 949 F. Supp. at 337 (constitution protects
use of plaintiff’s persona in dramatized film about Black Panthers).
This Court’s holding that an allegation of “substantial fictionalization” of a
newsworthy event states a claim under Section 51 will dramatically chill this type

24

 of valuable speech — the very type of speech that the “newsworthy” exception is
designed to protect. The newsworthy exception was adopted “with the First
Amendment in mind,” to protect “literary and artistic expression from the reach of
the statutory tort[,]” including “materials published or televised for the purpose of
entertainment.” Foster, 128 A.D.3d at 156. See also Mason v. Jews for Jesus,
2006 WL 3230279, at *2, *4 (S.D.N.Y. Nov. 8, 2006) (Section 51 is to be
“narrowly construed by the courts . . . so as to avoid any conflict with the rights
guaranteed by the First Amendment” (internal marks and citations omitted)).
Leave to appeal should thus be granted at this stage because of the broad
impact this Court’s Order has on protected expression. The Order has an
immediate impact not only on Lifetime, but on the constitutionally-protected
expression of an entire industry. It is already being cited in litigation threats to
producers of biographical films and movies about current events. Schulz Aff. ¶ 6.
Moreover, the issues for which review is sought may well dispose of this
litigation. Any claim that seeks to punish an exercise of free expression, like the
Section 51 claim advanced by Porco, should be subject to review and disposition
as promptly as possible. In the context of libel litigation, for instance, New York
courts have long favored dismissal at the earliest possible stage of the proceedings
in order to protect public debate and safeguard the freedom of the press. The Court
of Appeals has specifically instructed that dispositive motions are of “particular

25

 value, where appropriate, in libel cases, so as not to protract litigation through
discovery and trial and thereby chill the exercise of constitutionally protected
freedoms.” Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 379 (1995). As
the First Department similarly has recognized, “[t]o unnecessarily delay the
disposition of a libel action is not only to countenance waste and inefficiency but
to enhance the value of such actions as instruments of harassment and coercion
inimical to the exercise of First Amendment rights.” Immuno A.G. v. MoorJankowski, 145 A.D.2d 114, 128 (1st Dep’t 1989), aff’d, 77 N.Y.2d 235 (1991).
For all of these reasons, leave to appeal the controlling questions of law
framed by this Court’s Order should be granted at this stage of the litigation.

26

 CONCLUSION
For each and all the foregoing reasons, this Court should grant re-argument
and affirm the dismissal of plaintiff’s claim for failure to state a claim under
Section 51. Alternatively, leave should be granted to allow the Court of Appeals to
resolve the unsettled, controlling questions of law presented by this appeal.
Dated: April 3, 2017
LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:
David A. Schulz
Cameron Stracher
Amy Wolf
321 West 44th Street
Suite 1000
New York, NY 10036
(212) 850-6100
(212) 850-6299 (fax)
Email: dschulz@lskslaw.com
Counsel for Defendant Lifetime
Entertainment Services, LLC.

27

 SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION, THIRD DEPARTMENT
---------------------------CHRISTOPHER PORCO,
Plaintiff,
vs.
LIFETIME ENTERTAINMENT
SERVICES, LLC.
Defendant.
----------------------------

x
:
:
:
:
:
:
:
:
:
x

Index No. 2013/190
AFFIRMATION OF DAVID A.
SCHULZ IN SUPPORT OF
MOTION TO REARGUE OR,
IN THE ALTERNATIVE,
FOR LEAVE TO APPEAL

DAVID A. SCHULZ, an attorney licensed to practice in the State of New York
affirms, pursuant to CPLR 2106, and states as follows:
1.

I am a member of Levine Sullivan Koch & Schulz, LLP (“LSKS”),

counsel in this action for Lifetime Entertainment Services, LLC (“Lifetime”). I
submit this affirmation in support of Lifetime’s motion for re-argument of this
Court’s Decision and Order, entered February 23, 2017 (the “Order’”) or,
alternatively, for leave to appeal to the Court of Appeals.
2.

As set forth in the accompanying memorandum, leave to re-argue

should be granted because the Order rests on a misunderstanding of a letter upon
which the Court based its conclusion that plaintiff had adequately alleged facts
demonstrating that the Lifetime Film at issue was “substantially fictionalized.”
The letter was written by a non-party who had no involvement in making the

 Lifetime Film, and nothing in the record suggests that the letter’s author had seen
the Film or knew any specific facts about the content of the Film. A true and
correct copy of the letter is attached hereto as Exhibit 1 for the Court’s reference.
3.

Alternatively, leave to appeal should be granted to permit the Court of

Appeals to resolve the existing conflict over the scope of Civil Rights Law § 51
(“Section 51”). The Order construes Section 51 in a manner that conflicts with the
holdings of other Departments and the federal courts, and that appears to have been
rejected in Messenger v. Gruner + Jahr Printing & Publishing, 94 N.Y.2d 436
(2000). The Court of Appeals should be permitted to resolve this conflict and
remove the chilling uncertainty that now exists.
4.

Leave to appeal should also be granted so that the Court of Appeals

can address the constitutionality of Section 51 as construed in the Order. In
rejecting any First Amendment concerns, this Court relied upon the 1967 holding
in Spahn v. Julius Messner, Inc., 21 N.Y.2d 124 (1967). But Spahn is of doubtful
continuing validity given repeated holdings by the United States Supreme Court
over the past fifty years extending First Amendment protection in various contexts
to statements that are imprecise, fictional and false.
5.

Granting leave to appeal so that the Court of Appeals may address the

statutory and constitutional issues decided in the Order is particularly warranted
given the broad impact of the Order beyond the parties to this case. The Order’s
2

 holdings on Section 51 liability and the limits of First Amendment protection
impact the work of an entire industry dedicated to producing films that educate and
entertain.
6.

I am informed that in the short time since the Order was entered, it

already has been cited in litigation threats directed to Lifetime as well as other film
producers and distributors. The continuing pendency of this case, and the
controversy it has engendered over the scope of Section 51, imposes a substantial
chilling impact on constitutionally-protected expression.
7.

The pure issues of law addressed in the Order should be reviewed by

the Court of Appeals at this time to resolve the continuing controversy and its
adverse impact on speech.
8.

Attached hereto are true and correct copies of the following items:

ITEM

EXHIBIT

Decision and Order, entered on February 23, 2017, as
reported at 147 A.D.3d 1253.

2

Affirmation of David Sternbach, sworn to March 20,
2013, submitted in support of defendant’s motion to
vacate or stay March 19, 2013 injunction.

3

Letter from Christopher Porco to Hon. Robert Muller,
dated April 26, 2013.

4

Letter from David A. Schulz to Hon. Robert Muller,
dated May 8, 2014.

5

Letter from Christopher Porco to Hon. Robert Muller,
dated May 13, 2014.

6

3

 DATED: April 3, 2017
New York, New York

 

DAVID A. SCHULZ

EXHIBIT 1



i @0138

CBS NEWS
524 WEET 5? SWEEF
NEW VDHH. HEW YDFIK "Joni-2955

(212) 915-4321

02/20/2013

Dear Ms. Porco,

you well. I?m contacting you from CBS News Productions in New

I hope this letter ?nds
ce documentaries for various cable networks.

York where we produ

Lifetime Television reached out to my department at CBS News and asked us to produce
a documentary about the ordeal you and your family suffered in 2004. Before l' continue,
I want to say I'm sincerely sorry for the loss of everyone who had to live through this

traumatic experience.

producing a movie about your son?s case; the CBS
pany the movie when it airs in March. This brings

me to my intention for approaching you and your family: My hope is that the
documentary will provide the platform for yoUr family to state their position in a non-

?ctional program after the Lifetime movie airs.

I believe you'd-e aWare Lifetime is
oeumentary will he slotted to aeeorn

Also, we would like to cover Chris?s childhood and his teenage years growing up, and it
would really help as if I can- relicense some of the photos that were used in the 43 Hours
episode. ll" you see it as appropriate,'l will be able to pay a fee for the usage of these

photographs.
the time to read my letter and putting some thought into

it. I really would not choose to bring back these memories for you, but I do think you or
someone from your family should be given the chance to say their piece following the 
Lifetime movie. If it is not possible for you to sit doWn with me, I ?m hoping you can
direct me to a person who is close to your family. Ihave to let you know that we are on a

very tight'deadline'on? this project: 

Thank you Ms. Porco, for takin

I would he more than happy to talk to you over the phone. You can reach me at (212) 975

0917 or via email at BasakAngsnewscom. I appreciate your time and help.

All the 



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EXHIBIT

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 23, 2017
________________________________

522707

CHRISTOPHER PORCO,
Appellant,
v

MEMORANDUM AND ORDER

LIFETIME ENTERTAINMENT
SERVICES, LLC,
Respondent.
________________________________

Calendar Date:
Before:

January 18, 2017

McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.
__________

Christopher Porco, Dannemora, appellant pro se.
David A. Schulz, New York City, for respondent.
Davis Wright Tremaine, LLP, New York City (Robert Balin of
counsel), for The Reporters Committee for Freedom of the Press
and others, amici curiae.
__________

McCarthy, J.P.
Appeal from an order of the Supreme Court (Muller, J.),
entered April 20, 2015 in Clinton County, which granted
defendant's motion to dismiss the complaint.
In 2006, plaintiff was convicted of the murder of his
father and the attempted murder of his mother (see generally
People v Porco, 71 AD3d 791, 792 [2010], affd 17 NY3d 877
[2011]). In December 2012, plaintiff discovered that defendant
intended to broadcast a film entitled "Romeo Killer: The
Christopher Porco Story" (hereinafter the film). On January 29,
2013, plaintiff commenced this action pursuant to Civil Rights

 -2-

522707

Law §§ 50 and 51, seeking a preliminary injunction to prevent the
airing of the film. Plaintiff's subsequent motion for a
temporary restraining order to prevent the film's broadcast
pending a decision on his motion for a preliminary injunction was
granted by Supreme Court. Defendant appealed and this Court
granted emergency relief to defendant by vacating the temporary
restraining order pending an appeal on the merits and, as
planned, the film was nationally televised on March 23, 2013.
Supreme Court's order was ultimately reversed and vacated by this
Court (116 AD3d 1264 [2014]). Thereafter, Supreme Court granted
defendant's motion to dismiss the complaint for failure to state
a cause of action. Plaintiff now appeals, and we reverse.
On a motion pursuant to CPLR 3211 (a) (7) to dismiss a
complaint for failure to state a cause of action, this Court
"must afford the complaint a liberal construction, accept as true
the allegations contained therein, accord the plaintiff the
benefit of every favorable inference and determine only whether
the facts alleged fit within any cognizable legal theory" (He v
Realty USA, 121 AD3d 1336, 1339 [2014] [internal quotation marks
and citations omitted], lv dismissed and denied 25 NY3d 1018
[2015]). New York provides a limited statutory right of privacy.
Pursuant to Civil Rights Law § 50, it is a misdemeanor when a
firm or corporation "uses for advertising purposes, or for the
purposes of trade, the name, portrait or picture of any living
person without having first obtained the written consent of such
a person" (Civil Rights Law § 50). Similarly, Civil Rights Law §
51 allows a plaintiff to "maintain an equitable action in the
supreme court of this state against the [firm or corporation] so
using his [or her] name, portrait, picture or voice, to prevent
and restrain the use thereof; and may also sue and recover
damages for any injuries sustained by reason of such use" (Civil
Rights Law § 51). The Legislature intended for this statutory
protection of privacy to be "strictly limited to nonconsensual
commercial appropriations of the name, portrait or picture of a
living person" (Finger v Omni Publs. Intl., 77 NY2d 138, 141
[1990]), and these statutory provisions "do not apply to reports
of newsworthy events or matters of public interest" (Messenger v
Gruner + Jahr Print. & Publ., 94 NY2d 436, 441 [2000], cert
denied 531 US 818 [2000]).

 -3-

522707

The scope of the newsworthiness exception to liability,
however, must be construed in accordance with binding Court of
Appeals precedent. The Court of Appeals has held that statutory
liability applies to a materially and "substantially fictitious
biography" (Spahn v Julian Messner, Inc., 18 NY2d 324, 329
[1966], vacated 387 US 239 [1967], adhered to on remand and rearg
21 NY2d 124 [1967], appeal dismissed 393 US 1046 [1969]) where a
"knowing fictionalization" amounts to an "all-pervasive" use of
imaginary incidents (Spahn v Julian Messner, Inc., 21 NY2d 124
127-129 [1967], appeal dismissed 393 US 1046 [1969]) and a
biography that is "nothing more than [an] attempt[] to trade on
the persona" of the plaintiff (Messenger v Gruner + Jahr Print. &
Publ., 94 NY2d at 446; see generally Lerman v Flynt Distributing
Co., Inc., 745 F2d 123, 131-132 [2d Cir 1984]). When it most
recently addressed the aforementioned principles, the Court of
Appeals explained that a work "may be so infected with fiction,
dramatization or embellishment that it cannot be said to fulfill
the purpose of the newsworthiness exception" (Messenger v Gruner
+ Jahr Print. & Publ., 94 NY2d at 446). As further binding Court
of Appeals precedent makes clear, the fact that a film revolves
around a "true occurrence" (id. at 445), such as a rescue of
passengers from a shipwreck, does not invoke the newsworthiness
exception in the event that the entire account remains "mainly a
product of the imagination" (Binns v Vitagraph Co. of Am., 210 NY
51, 56 [1913]). Finally, the Court of Appeals has directly
passed on the issue of whether extending liability in the
aforementioned manner violated constitutional protections of
freedom of speech and has found no such violation (see Spahn v
Julian Messner, Inc., 21 NY2d at 129).
Thus, the issue before this Court is whether plaintiff's
complaint, when given the benefit of every favorable inference,
alleges facts suggesting that defendant knowingly produced a
materially and substantially fictitious biography that violates
the statutory right of privacy.1 Turning to the record,
1

The Court of Appeals has made clear that the
aforementioned line of cases dealing with "invented biographies
of plaintiffs' lives" relate to "strikingly different" scenarios
from those cases where the Court has addressed "the unauthorized,

 -4-

522707

plaintiff alleges that the film is a "knowing and substantially
fictionalized account" about plaintiff "and the events that led
to his incarceration," and that it appropriates his name without
his consent "for purposes of profit." In support of this claim,
plaintiff offered a letter written by a producer associated with
the film to his mother before the film's release. The producer
indicated that she was involved in the production of a
documentary intended to accompany the film that the producer
"hope[d] . . . [would] provide the platform for [the mother's]
family to state their position in a non-fictional program after
the [film] airs." Viewing the producer's correspondence in the
light most favorable to plaintiff and according plaintiff the
benefit of every favorable inference, it is reasonable to infer
that the producer indicated that the film was considered to be a
fictitious program. Considering the foregoing and the standard
of review on a motion to dismiss, we cannot say that plaintiff
has failed to sufficiently allege the same degree of
fictionalization or the same degree of defendant's knowledge of
such fictionalization as that which has been found to violate the
statutory right to privacy without running afoul of
constitutional protections of speech (see Spahn v Julian Messner,
Inc., 21 NY2d at 129; see also Binns v Vitagraph Co. of Am., 210
NY at 56).2 Accordingly, defendant's motion to dismiss for

and allegedly false and damaging, use of plaintiffs' photographs
to illustrate newsworthy articles" (Messenger v Gruner + Jahr
Print. & Publ., 94 NY2d at 446). The Court of Appeals has also
offered the guidance that courts, in addressing alleged
violations of the statutory right of privacy, ought to resort to
precedent "directly on point" for the governing rules, which,
here, are cases such as Spahn v Julian Messner, Inc. (21 NY2d 124
[1967], supra) and Binns v Vitagraph Co. of Am. (supra) that
regard biographies (Messenger v Gruner + Jahr Print. & Publ., 94
NY2d at 446).
2

We emphasize that, at this procedural stage, the film is
not before this Court, and "[w]hether an item is newsworthy
depends solely on [its] content" (Messenger v Gruner + Jahr
Print. & Publ., 94 NY2d at 442 [internal quotation marks and
citation omitted]).

 -5-

522707

failure to state a cause of action should have been denied.
Garry, Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the order is reversed, on the law, with costs,
and motion denied.

ENTER:

Robert D. Mayberger
Clerk of the Court

 EXHIBIT

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION, THIRD DEPARTMENT

 


CHRISTOPHER PORCO, Clinton County Clerk?s
Index No. 2013/ 90
Plaintiff-ReSpondent,
vs. 1 AFFIRMATION OF
1 DAVID STERNBACH
LIFETIME ENTERTAINMENT SERVICES, INC. 
Defendant?Appellant.


DAVID STERNBACH, an attorney admitted to practice in the State of New York, af?rms as
follows:

1. I am Content and Production Counsel at Television Networks, LLC, the
owner of Lifetime Entertainment Services, Inc. (?Lifetime?), among other networks. I submit
this af?rmation in support of Lifetime?s motion to vacate or stay the March 19, 2013 Order
enjoining the broadcast of a movie about Plaintiff-Respondent?s trial and conviction. I have
personal knowledge of the facts herein.

2. The March 19 Order patently misconstrues Section 51 of the New York Civil
Rights laws to confer upon individuals the right to enjoin movies depicting newsworthy events in
which they played a part, if the movie is ??ctionalized? to any extent. No such right exists and
the Order fundamentally violates free speech rights.

3. As Content and Production Counsel, my responsibilities include counseling and
legal review of the original movies produced for television by Lifetime that are based on, or
inspired by, true stories. Such movies serve an important educational ?mction and are of great
interest to the public. Examples of such works I have personally reviewed include Imperfect

Justice: Prosecuting Casey Anthony, Amanda Knox: Murder on Trial in Italy, Drew Peterson:

Untouchable, Betty Coretta (depicting the lives of Betty Shabazz and Coretta Scott King),
Teen Pregnancy Pact (inspired by events in a high school in New Bedford, MA), and numerous
others. None of the real-life people depicted in these movies granted any rights to use their
names or likenesses. All of these movies included composite or ?ctionalized characters, in
addition to well-known central characters, as well as invented dialogue.

4. I was personally involved in reviewing ?Romeo Killer: The Christopher Porco
Story" (the ?movie?). The movie tells the story of the murder of Peter Porco and the attempted
murder of his wife, Joan Porco, the resulting criminal investigation, and the prosecution and
conviction of their son, Christopher Porco, for those crimes.

5. The case against Christopher Porco was of enormous interest to the public. It
received extensive news coverage at the time, and was the subject of a one hour program on 48
Hours Mystery broadcast by CBS, and an episode of the series Forensic Files.

6. In creating the script for the movie, the producers used as source material of?cial
court and police records, interviews with persons involved in the investigation, and historical and
other documents. In connection with my review of the movie I had access to many of those
same documents and records.

7. As many movies of this genre do, the movie contains a disclaimer which reads, in
substance: ?While this ?lm is a dramatization based on a true story, some names have been
changed, some characters are composites and certain other characters and events have been
?ctionalized.?

8. Although the movie is dramatized for television, the essential elements of the

story are true and accurate. Speci?cally, the details and allegations of the crimes, the criminal

investigation, and the conviction of Mr. Porco are all factual, well-documented and accurately
portrayed.

9. For example, the movie recounts that prosecutors demonstrated that Mr. Porco
was living a double life in which he presented himself as a law-abiding young man, but was
really stealing items from his family and friends, defrauding his parents (by forging their names
on loan documents) and lying about his family?s income. All of these and other facts in the
movie are well documented in the transcripts of the trial.

10. Without seeing the script or movie, Mr. Porco advanced the unvamished
allegation that the movie is substantially ?ctionalized. His claim is completely without merit.
No material fact about his crimes, the police investigation, or the evidence at trial is falsi?ed in
the movie, which provides a fair and balanced dramatization of the events depicted.

11. If permitted to stand, the March 19, 2013 Order would violate Lifetime?s
constitutional right to tell the newsworthy story of Christopher Porco?s trial and conviction for
the gruesome murder of his own father. It should not be permitted to stand.

Dated: March 20, 2013
New York, NY

4;

David Sternbach

 

EXHIBIT

Christopher Porco, 06A6686
Clinton Correctional Facility
PO. Box 2001
Dannemora, NY 12929

April 26, 2013

Honorable Robert J. Muller
Supreme Court Chambers
Warren County Municipal Center
1340 State Route 9

Lake George, New York 12845

Re: Porco V. Lifetime Entertainment Services, LLC
Index No.2013-190

Dear Judge Muller:

I write in response to Mr. Stracher?s letter to this Court dated April 23, 2013, which
referenced the above-entitled action. On behalf of defendant Lifetime Entertainment Services Mr.
Stracher requested adjournment of these proceedings pending an appellate court disposition of
Lifetime?s appeal of this Court?s March 19 Order. For the reasons set forth below, plaintiff
respectfully requests that the Court deny defendant?s request, and set a new return date for plaintiff 
pending motion for a preliminary injunction.

Lifetime? interlocutory appeal only includes the narrowest of issues - the discretion employed
in the March 19 Order of this Court which granted plaintiff a temporary restraining order. The issue
is one of the propriety of prior restraint only, and not the broader, ?standards governing a request for
injunctive relief in an action under Civil Rights Law 51 and whether plaintiff" 3 request is barred by
the First Amendment?, as claimed by defendant in its aforementioned letter.

Plaintiff motion for a preliminary injunction relies on a different standard, does not request
prior restraint, and plaintiff should be afforded the opportunity to seek injunctive relief while this
action is pending - especially in light of defendant? continuing violation of plaintiff 3 right to privacy.
The Court?s March 19, Order gave defendant an opportunity to contest plaintiff motion, and also
allowed Plaintiff to make a more informed argument for the injunction.

Injunctive relief under Civil Rights Law ?51 in analogous circumstances has been thoroughly
vetted on First Amendment grounds - and has been held proper by both state and federal courts upon
a proper showing by the plaintiff. See e. g, Times Inc. v. Hill, 87 534, (knowing falsity with
regard to newsworthy event and people involved in such actionable under Civil Rights Law ?51:
?The New York Court of Appeals, as the Spahn opinion demonstrates, has been assiduous in
construing the statute to avoid invasion of the constitutional protections of speech and press.? id at
547). Despite Lifetime?s parroting unrelated First Amendment cases, this Court has been and is fully

0



capable of interpreting these precedents without stepping into the issues being presently litigated in
the Appellate Division.

Further, any motion to dismiss on constitutional grounds, as referenced by defendant, would
be meritless for two additional reasons. First, there are clear issues of fact to be resolved herein that
would preclude summary judgement, and these issues will not be litigated in the present appeal; and
second, plaintiff will be amending his complaint after defendant answers to include, among other
items, a demand for monetary damages in addition to the permanent injunction. There may also be
additional plaintiffs joining this action in the near future, and as such adjournment of these
proceedings would, respectfully, not be warranted.

In the March 19, Order for a TRO this Court properly found that defendant appeared to
concede substantial ?ctionalization of the movie in question, which is the only element of a Civil
Rights Law violation to be litigated here. In the time since, it has only become more apparent that
the falsehoods employed by defendant in appropriating plaintiff name and likeness for a commercial
purpose were both calculated and substantial. Plaintiff respect?ally requests that this Court vacate
its prior order adj ourning plaintiff motion for a preliminary injunction, set a new return date for such
relief, and deny defendant?s request for an adjournment of the action pending appeal.

Submitted,

l/l/L/X 

(Tlniisfopher Porco
Plaintiff, pro-se

cc: Cameron Stracher

EXHIBIT

LEVINE SULLIVAN
LSKS KOCH ascnurz, LLP

321 West 44th Street
Suite 1000

New York. NY 10036
(212) 850-6100 Phone
(212) 850-6299 Fax

David Schulz
(212) 850-6103


May 8, 2014
VIA FACSIMILE (518-824-6694)

Honorable Robert J. Muller
Supreme Court, State of New York
Warren Street Municipal Center
1340 State Route 9

Lake George, NY 12845

Re: Porco v. Lifetime Entertainment Services, LLC 09-1-2013-0080

Dear Judge Muller:

We represent defendant Lifetime Entertainment Services in the above-referenced action. I
write in response to the Court?s letter of April 24, 2014, which set a May 19, 2014 deadline for
defendant to respond to the complaint in this action, and a May 27, 2104 return date on plaintiff 
pending motion for a preliminary injunction.

After this Court stayed all proceedings for the duration of defendant?s appeal, plaintiff
stated his intention to amend the complaint and potentially add additional parties once the appeal
was resolved. See Letter of Christopher Porco to Hon. Robert J. Muller, dated April 26, 2013
(?plaintiff will be amending his complaint? to include a demand for money damages); Letter of
Christopher Porco to David Schulz, dated May 17, 2013 (?my intention is to continue the litigation
in all respects, and to amend the complaint Copies of these letters are enclosed for
the Court?s reference.

Since receiving the Court?s scheduling order, we have been attempting to contact
Mr. Porco to discuss the schedule. Our goal was to determine whether he still plans to amend and,
if so, to ?nd out how much time he required to complete his amended pleading, so that we might
jointly propose a modi?cation to the current schedule. Unfortunately, all efforts to reach Mr.
Porco by telephone have thus far been unsuccessful.

In light of plaintiff 5 previous statements to the Court and counsel that he intends to amend
the complaint, we respectfully request that the scheduling order be amended to set a deadline
by which plaintiff must serve and ?le any amended complaint, and require defendant to answer
or otherwise respond within 30 days after receipt of either an amended complaint or a statement
from plaintiff that will proceed on his current pleading. To require defendant to proceed at this
time, with a motion against a complaint that will be amended, would be a waste of time and
resources.

Washington New York Philadelphia Denver

LEVINE SULLIVAN
KOCH LLP
Honorable Robert J. Muller

May 8, 2013
Page 2

Given the plan to amend, we also request that the hearing on plaintiff? motion for a
preliminary injunction be similarly delayed to a date at least one week after the date by which
defendant responds to any amended pleading. The issues to be resolved at that hearing are only
likely to be further re?ned if plaintiff is afforded an opportunity to clarify his position, now that he
has had an opportunity to View the film that he challenges in this action.

We are of course prepared to proceed under the current schedule if the Court prefers, but
respectfully request an adjustment that will serve the interests of efficiency and economy.

Respectfully submitted,
LEVINE SULLIVAN KOCH SCHULZ, LLP



vDavid/A. Schulz 0
cc: Christopher Porco (by U.S. mail)

Christopher Porco, 06A6686
Clinton Correctional Facility
PO. Box 2001
Dannemora, NY 12929

April 26, 2013

Honorable Robert J. Muller
Supreme Court Chambers
Warren County Municipal Center
1340 State Route 9

Lake George, New York 12845

Re: Porco v. Lifetime Entertainment Services, LLC
Index NO. 2013-190

Dear Judge Muller:

1 write in response to Mr. Stracher?s letter to this Court dated April 23, 2013, which
referenced the above-entitled action. On behalf of defendant Lifetime Entertainment Services Mr.
Stracher requested adjournment of these proceedings pending an appellate court disposition of
Lifetime?s appeal of this Court?s March 19 Order. For the reasons set forth below, plaintiff
respectfully requests that the Court deny defendant? 3 request, and set a new return date for plaintiff 
pending motion for a preliminary injunction.

Lifetime? interlocutory appeal only includes the narrowest ofissues the discretion employed
in the March 19 Order of this Court which granted plaintiff a temporary restraining order. The issue
is one of the propriety of prior restraint only, and not the broader, ?standards governing a request for
injunctive relief in an action under Civil Rights Law 51 and whether plaintiff request is barred by
the First Amendment?, as claimed by defendant in its aforementioned letter.

Plaintiff? motion for a preliminary injunction relies on a different standard, does not request
prior restraint, and plaintiff should be afforded the opportunity to seek injunctive relief while this
action is pen ding - especially in light of defendant?s continuing violation of plaintiff? right to privacy.
The Court?s March 19, Order gave defendant an opportunity to contest plaintiff?s motion, and also
allowed Plaintiff to make a more informed argument for the injunction.

lnjunctive relief under Civil Rights Law ?5 1 in analogous circumstances has been thoroughly
vetted on First Amendment grounds .. and has been held proper by both state and federal courts upon
a proper showing by the plaintiff. See Times Inc. v. Hill, 87 534, (knowing falsity with
regard to newsworthy event and people involved in such actionable under Civil Rights Law ?5 1:
?The New York Court of Appeals, as the Spahn opinion demonstrates, has been assiduous in
construing the statute to avoid invasion of the constitutional protections of speech and press.? I'd at
547). Despite Lifetime? parroting unrelated First Amendment cases, this Court has been and is fully

capable of interpreting these precedents without stepping into the issues being presently litigated in
the Appellate Division.

Further, any motion to dismiss on constitutional grounds, as referenced by defendant, would
be meritless for two additional reasons First, there are clear issues of fact to be resolved herein that
would preclude summary judgement, and these issues will not be litigated in the present appeal; and
second, plaintiff will be amending his complaint after defendant answers to include, among other
items, a demand for monetaIy damages in addition to the permanent injunction. There may also be
additional plaintiffs joining this action in the near future, and as such adjournment of these
proceedings would, respectfully, not be warranted. 

In the March 19, Order for a TRO this Court properly found that defendant appeared to
concede substantial ?ctionalization of the movie in question, which is the only element of a Civil.
Rights Law violation to be litigated here. In the time since, it has only become more apparent that
the falsehoods employed by defendant in appropriating plaintiff" 3 name and likeness for a commercial
purpose were both calculated and substantial. Plaintiff respectfully requests that this Court vacate
its prior order adj ourning plaintiff?s motion for a preliminary injunction, set anew return date for such
relief, and deny defendant?s request for an adjournment of the action pending appeal.

Restart-tally Submitted,


i .

 

 

Christopher Porco
Plaintiff, pro-se

cc: Cameron Stracher

Christopher Porco, 
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929

May 17, 2013
David Schulz
321 West 44th Street
Suite 1000
New York, New York 10036

Re: Porco v. Lifetime Entertainment Services, LLC

Dear Mr. Schulz:

Thank you for your letter dated May 10, 2013. Many of the issues
you raise in your communication were addressed in my April 26
correspondence to Judge Muller, to which your associate Mr. Stracher

was copied. I have enclosed a copy for your convenience.

As outlined in the enclosed letter, my intention is to continue
the litigation in all reapects, and to amend the complaint post-appeal
to include, among other items, a demand for monetary damages.
Further, additional plaintiffs will likely be joining the suit in the
near future. I expect and am fully prepared for a multi-year time

frame for this action.

You are course welcome to attempt to demonstrate on appeal
that injunctive relief can never be granted in circumstances similar
to these, but as you must be aware, to do so you will have to convince
several courts to reverse a century of contrary precedent. In any
case, the appellate disposition, whatever it may be, will not

invalidate nor terminate the underlying action.

Your client has chosen to engage in practices that violate New
York's, (and likely many other state's) laws. This action has far-
reaching consequences for Lifetime's business model. If_ Lifetime
wishes to end this suit and save the costs of litigation, plus
potential damages awarded to me or other future plaintiffs, I would be

willing to entertain a settlement offer.

L. impure?, ??xa

Shristopher Porco

 

Christopher Porco, 06A6686
Clinton Correctional Facility
PO. Box 200]
Dannemora, NY 12929

April 26, 2013

Honorable Robert J. Muller
Supreme Court Chambers
Warren County Municipal Center
1340 State Route 9

Lake George, New York 12845

Re: Porco v. Lifetime Entertainment Services, LLC
Index No. 2013-]90

Dear Judge Muller:

1 write in response to Mr. Stracher?s letter to this Court dated April 23, 2013, which
referenced the above?entitled action. On behalf of defendant Lifetime Entertainment Services Mr.
Stracher requested adjournment of these proceedings pending an appellate court disposition of
Lifetime?s appeal of this Court?s March 19 Order. For the reasons set forth below, plaintiff
respectfully requests that the Court deny defendant?s request, and set anew return date for plaintiff 
pending motion for a preliminary injunction.

Lifetime?s interlocutory appeal only includes the narrowest ofissues - the discretion employed
in the March 19 Order of this Court which granted plaintiff a temporary restraining order. The issue
is one of the propriety ofprior restraint only, and not the broader, ?standards governing a request for
injunctive relief in an action under Civil Rights Law 51 and whether plaintiff" 5 request is barred by
the First Amendment?, as claimed by defendant in its aforementioned letter.

Plaintiff motion for a preliminary injunction relies on a different standard, does not request
prior restraint, and plaintiff should be afforded the opportunity to seek injunctive relief while this
action is pending - especially in light of defendant? continuing violation of plaintiff 3 right to privacy.
The Court?s March 19, Order gave defendant an opportunity to contest plaintiff?s motion, and also
allowed Plaintiff to make a more informed argument for the injunction.

Injunctive relief under Civil Rights Law ?5 1 in analogous circumstances has been thoroughly
vetted on First Amendment grounds and has been held proper by both state and federal courts upon
a proper showing by the plaintiff. See e. g, Times Inc. v. Hill, 87 534, (knowing falsity with
regard to newsworthy event and people involved in such actionable under Civil Rights Law ?5 1:
?The New York Court of Appeals, as the Spahn opinion demonstrates, has been assiduous in
construing the statute to avoid invasion of the constitutional protections of speech and press,? id at
547). DeSpite Lifetime?s parroting unrelated First Amendment cases, this Court has been and is fully

cap able of interpreting these precedents without stepping into the issues being presently litigated in
the Appellate Division.

Further, any motion to dismiss on constitutional grounds, as referenced by defendant, would
be meritless for two additional reasons. First, there are clear issues of fact to be resolved herein that
would preclude summary judgement, and these issues will not be litigated in the present appeal; and
second, plainti??will be amending his complaint after defendant answers to include, among other
items, a demand for monetaiy damages in addition to the permanent injunction. There may also be
additional plaintiffs joining this action in the near future, and as such adjournment of these
proceedings would, respectfully, not be warranted. .

In the March 19, Order for a TRO this Court properly found that defendant appeared to
concede substantial fictionalization of the movie in question, which .is the only element of a Civil
Rights Law violation to be litigated here. In the time since, it has only become .more apparent that
the falsehoods employed by defendant in appropriating plaintiff? 3 name and likeness for a commercial
purpose were both calculated and substantial. Plaintiff respectfully requests that this Court vacate
its prior order adj ourning plaintiff motion for a preliminary injunction, set a new return date for such
relief, and deny defendant?s request for an adjournment of the action pending appeal.

liesperl'liilly Submitted,
i .Irl' i' 

ChristopEr orco

Plaintiff, pro-.96

cc: Cameron Stracher

EXHIBIT

May?15?2014 02:14 PM Warrenn County Supreme Court 518 824?6694 1/2

Christopher Porco, 
Clinton Correctional Facility
P.0. Box 2001
Dannemora, New York 12929

May 151,9 l?i?iEd

Honorable Robert J. Muller

Supreme Court Chambers

Warren County Municipal Center

1340 State Route 9 Hon-Rohcrumuucr
Lake George, New York 12845 

Re: Porco v. Lifetime Entertainment Services, LLC
Index No. 2013-190

Dear Judge Muller:

I write in response to Mr. Schulz's letter to this Court dated
May 8, 2014. In his capacity as counsel for Lifetime, Mr. Schulz
requests an amended scheduling order to: set a deadline by which
plaintiff must serve and file any amended complaint, and require
defendant to answer or otherwise respond within 30 days after receipt
of either an amended complaint or a statement from plaintiff that will
proceed on his current pleading.

I respectfully oppose Lifetime's request. Mr. Schulz includes
correSpondence dated May 17, 2013 and April 26, 2013, and is asking
the Court to bind me to a pleading scheme that was parenthetically
outlined within. The May 17 letter was written replying to
correspondence sent by Mr. Schulz to me on May 10, wherein he asked me
to 'voluntarily' withdraw this action. I have enclosed a copy for the
Court's convenience. My representations regarding potential amendment
were not any commitment to a specific time frame or specific action.

Because the circumstances surrounding the In0v1e. at issue.'have
changed since the instant complaint ?was filed, it 'will likely 'be
necessary to amend the pleading at some point. Theoretically, the
complaint could be amended during Lifetime's answering period.
C.P.L.R. 3025(a) allows one amendment as of course, and I have no
doubt that Lifetime would prefer that I did so prior to its answer.
However, I choose not to do so, primarily for tactical reasons. If
and when I do, Lifetime can be assured that any amendments will be
completed in conformance with the C.P.L.R.

As Mr. Schulz indicates that he is prepared to proceed under the
current schedule, I respectfully request that the Court adhere to the
deadlines it laid out in its April 24, 2014 letter. In addition, I
would also request that the Court remind Lifetime of its obligation to
provide me with a copy of the movie script, as ordered in the Amended
Order to Show Cause herein.

Thank you for your time and attention to this matter.

 

cc: David Schulz

May??152014 02:14 PM Warrenn County Supreme Court 5?18 824?6694 2/2

:1 LEVINE SULLIVAN
El ii KOCH LLP

321 West 44th Street
Suite 1000

New York. NY 10036
{212) 850-6100 Phone
(212) 850-6299 Fax

David A. Schulz
(212) 850-6 103


May 10,2013

ChristOpher Porco


Clinton Correctional Facility
PO Box 2001

Dannemora, NY 12929

Re: Porco v. Lifetime Entertainment Services, LLC

Dear Mr. Force:

The only relief requested in your Complaint against Lifetime is an injunction to prevent
the broadcast of its movie concerning your prosecution and conviction. Inasmuch as preliminary
injunctive relief was not allowed, and the movie has now aired, I am writing to determine
whether you intend to continue the litigation or are prepared to withdraw the lawsuit voluntarily
at this time.

If Lifetime must proceed with its pending appeal, it is fully prepared to demonstrate that
injunctive relief may never properly be entered to bar the broadcast of a movie about a
newsworthy event on the theory of ?substantial ?ctionalization? advanced in your Complaint.
Continuing the lawsuit will serve no useful purpose, while only continuing to draw public
attention to your case.

Please let me know as soon as possible whether we may voluntarily bring this case to a
close at this time. If we do not hear back from you before the end of this month, Lifetime will
proceed with its appeal.

Very truly yours,
Dav' . ch?z/
la?a {Ella . :nn

{00520391 :vl 
Washington New York 1 Philadelphia 5 Denver