Ulrich Suss, Appellant, v. New York Media, Inc., et al., Respondents

Ulrich Suss, Appellant, v New York Media, Inc., et al., Respondents. [891 NYS2d 409] [MAJORITY] The offending photograph appeared in the May 7, 2007 issue of the magazine; defendants assert that such issue was distributed to newsstands in Manhattan on April 28 and April 29 2007; the action was commenced on April 30, 2008; and it is undisputed that both of plaintiffs claims are governed by the one-year statute of limitations. To prove their claim of distribution on April 28 and April 29, defendants submitted the affidavit of the magazine’s officer with personal knowledge of the magazine’s printing and publication practices; the affidavits of an individual who was personally involved in distributing the issue and placing covers of the issue in promotional Windows Banners at newsstands; and photographs of the Windows Banners, digitally dated April 29, taken by the distributor in the ordinary course of business, depicting covers of the issue on display at newsstands along with weekend editions of newspapers dated April 27 and other newspapers dated April 29. We reject plaintiffs argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue’s distribution date; the distributor’s affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants’ reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication. We also reject plaintiffs argument that unless the court gives CPLR 3211 (c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211 (a) (5) (see Alverio v New York Eye & Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]). Concur— Tom, J.P, Andrias, McGuire and Manzanet-Daniels, JJ.