Pamela J. Howell et al., Appellants,
New York Post Company, Inc., et al., Respondents.

81 N.Y.2d 115, 612 N.E.2d 699 (1993)

 [p. 117]
Chief Judge Kaye.
This appeal, involving a newspaper's publication of plaintiff's  [p. 118]  photograph without her consent, calls upon us to consider the relationship between two separate but potentially overlapping torts: intentional infliction of emotional distress, and invasion of the right to privacy.

In early September 1988, plaintiff Pamela J. Howell was a patient at Four Winds Hospital, a private psychiatric facility in Westchester County.  Her complaint and affidavit (accepted as true on this appeal) allege that it was imperative to her recovery that the hospitalization remain a secret from all but her immediate family.
Hedda Nussbaum was also at that time a patient at Four Winds.  Nussbaum was the "adoptive" mother of six-year-old Lisa Steinberg, whose November 1987 death from child abuse generated intense public interest (see, e.g., Matter of New York Times v Rothwax, 143 AD2d 592 [vacating Trial Judge's order barring counsel from discussing case with news media]; see also, People v Steinberg, 79 NY2d 673).

On September 1, 1988, a New York Post photographer trespassed onto Four Winds' secluded grounds and, with a telephoto lens, took outdoor pictures of a group that included Nussbaum and plaintiff.  That night, the hospital's medical director telephoned a Post editor requesting that the paper not publish any patient photographs. Nevertheless, on the front page of next days' edition two photographs appeared--one of Nussbaum taken in November 1987, shortly after her arrest in connection with Lisa's death, and another of Nussbaum walking with plaintiff, taken the previous day at Four Winds.

In the earlier photograph, Nussbaum's face is bruised and disfigured, her lips split and swollen, and her matted hair is covered with a scarf.  By contrast, in the photograph taken at Four Winds, Nussbaum's facial wounds have visibly healed, her hair is coiffed, and she is neatly dressed in jeans, a sweater and earrings.  Plaintiff, walking alongside her, smiling, is in tennis attire and sneakers.  The caption reads: "The battered face above belongs to the Hedda Nussbaum people remember--the former live-in lover of accused child-killer,  [p. 119]  Joel Steinberg.  The serene woman in jeans at left is the same Hedda, strolling with a companion in the grounds of the upstate psychiatric center where her face and mind are healing from the terrible wounds Steinberg inflicted."

The accompanying article centers on Nussbaum's physical and mental rehabilitation and quotes her as saying: "I feel good.  I'm healthy ...  They're good to me here.  The People are nice and I do my photography." The article concludes by noting that several issues still haunt Nussbaum, including whether she should cooperate with the prosecution and testify against Steinberg.

Although plaintiff's name was not mentioned in the caption or article, her face is readily discernible.  Alleging she experienced emotional distress and humiliation, plaintiff commenced an action against the Post, the photographer and two writers, seeking multimillion dollar damages for alleged violations of Civil Rights Law §  50 and 51, intentional and negligent infliction of emotional distress, trespass, harassment and prima facie tort.  Plaintiff's husband, by the same complaint, brought a derivative claim for loss of consortium.

* * *

 Courts have recognized that newsgathering methods may be tortious (see, e.g., Galella v Onassis, 487 F2d 986, 995 [2d Cir]) and, to the extent that a journalist engages in such atrocious, indecent and utterly despicable conduct as to meet the rigorous requirements of an intentional infliction of emotional distress claim, recovery may be available.  The conduct alleged here, however--a trespass onto Four Winds' grounds--does not remotely approach the required standard.  That plaintiff was photographed outdoors and from a distance diminishes her claim even further.

Accordingly, the order of the Appellate Division, insofar as it pertains to the individual defendants, should be affirmed, with costs.