By this motion, the State seeks an order dismissing the claim on the ground that it fails to state a cause of action and on the further ground that the court does not have jurisdiction to entertain it. The claim for damages rests upon a violation of section 51 of the Civil Rights Law, and alleges, in substance, that the State published and circulated claimant’s picture for trade and advertising purposes without consent.
Section 50 and the pertinent part of section 51 of the Civil Rights Law, read:
“§ 50. Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of tradе, the name, portrait or picture of any living person without having-first obtained the written consent of such person, оr if a minor of his or her parent or guardian, is guilty of a misdemeanor.”
It is urged, as a rule of statutory construction, that tort liability for the violation of a general statute does not apply to the Government where it is not named in the statute. This is taken to mean that unless the enactment by its terms expressly includes mention of the State’s liability for its violation, action аgainst the State would not lie. It is said that the State is not bound by any statute which delimits its sovereignty, except by unmistakable legislative intent to the contrary. But, it is to be remembered that the State has waived its immunity and consented that its liability may be determined in the same manner as in actions against individuals or corporations (Court of Claims Act, § 8).
It is recognized, however, that there are functions of Government that reside solely in the power of the State to exercise and administer which remain unaffected by the waiver of immunity statute. On the other hand, the State is empowered to undertake activities that smack of private enterprise and which are the subject of commercial venture by private persons. The difference in character between the one and the other suggests a rule of liability which finds logical support for its validity. The distinction was indicated in Newiadony v. State of New York (
In the instant case, the State operated a skiing facility for a fee. It may not be disputed that it is the kind of business that engages the attention of private enterprise and, therefore, may not be stamped as an activity “ in which no private citizen engages which are functions characteristic of a sovereign.” That being so, it partakes of a character that seemingly brings it within the terms of the waiver of immunity statutе (Court of Claims Act, § 8) by which, as was said in Newiadony v. State of New York, supra, p. 60): “It [the State] waives immunity as to ‘ liability and action ’; hut only where an individual or corporation would be required to аnswer to an action for the same thing.”
It is further argued that the State cannot be guilty of a violation of section 50 whiсh is defined as a misdemeanor; and that since section 51 gives rise to a civil remedy for a violation of section 50, it does not create a cause of action for damages against the State. This view of section 51 is in cоnflict with a reasonable reading of its language. The statute is entitled to a construction that will give adequate expression to the legislative policy. True it is that by section 50 the user of the unauthorized publication is made criminally culpable. Nevertheless, it is instinct in the legislation that the penal liability is not an indispensable concomitant of the civil cause of action. Section 51, read independently of section 50, makes it actionable in a suit for damages to use a portrait for advertising purposes without written consent first obtained. To paraphrase it, the legislation does not say that only one who may he held guilty of a misdemeanor is also answerable in damagеs. Rather, section 51 completely and by its own terms describes the prohibited conduct and authorizes the civil suit. To sаy that the State may with impunity disregard its proscription is to suggest an incongruous construction of the act in disregard of fundamental justice.
Motion denied. Submit order.