Doe v. Darien Lake Theme Park & Camping Resort, Inc.

—Order unanimously affirmed without costs. Memorandum: Supreme" Court properly denied defendant’s motion to dismiss the amended complaint. Plaintiffs allege that defendant breached their privacy rights under Civil Rights Law §§ 50 and 51 by using a photograph of plaintiffs in its 1997 and 1998 advertising brochures and web site home pages. Although the court erred in determining that the incidental use exception to Civil Rights Law §§ 50 and 51 does not apply as a matter of law (cf., Stillman v Paramount Pictures Corp., 2 AD2d 18 , 19-20, affd 5 NY2d 994 ), we nevertheless conclude that the motion was properly denied because the applicability of the exception is an issue of fact for the jury. Where, as here, the use of a person’s picture “is ‘fleeting and incidental’, it will not be actionable as a nonconsensual use of that person’s [picture] for the purpose of advertising” (Marks v Elephant Walk, 156 AD2d 432 , 434, quoting Delan v CBS, Inc., 91 AD2d 255 , 260). “Whether a particular use is incidental is determined through an assessment of the ‘relationship of the references to a particular individual “to the main purpose and subject of the [work in issue]” ’ ” (Delan v CBS, Inc., supra, at 260 , quoting Ladany v Morrow & Co., 465 F Supp 870 , 882). That assessment must be made by a jury in this case (see, Grodin v Liberty Cable, 244 AD2d 153 ). (Appeal from Order of Supreme Court, Erie County, Gorski, J. — Dismiss Pleading.) Present — Hayes, J. P., Scudder, Kehoe and Lawton, JJ.