FILED: NEW YORK COUNTY CLERK 11/04/2016 02:40 PM INDEX NO. 159321/2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/04/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X MORGAN C. STOVER, -against- Plaintiff, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, SAKS FIFTH AVENUE LLC, JOHN DOES 1 THROUGH 10, JANE DOES 1 THROUGH 10, ABC CORPORATIONS 1 THROUGH 10; and XYZ PARTNERSHIPS 1 THROUGH 10, S U M M O N S Index No.: Date Purchased: Defendants. ------------------------------------------------------------------------X PLAINTIFF DESIGNATES NEW YORK COUNTY AS PLACE OF TRIAL BASIS OF VENUE IS THE DEFENDANTS PLACES OF BUSINESS YOU ARE HEREBY SUMMONED to answer the Complaint in this action by serving your Answer on Plaintiff s attorneys within 20 days after service of this Summons, exclusive of the day of service, or within 30 days after service is complete if this Summons is not personally delivered to you within the State of New York. In case of your failure to Answer or Appear, Judgment will be taken against you by default for the relief demanded in the Complaint. Dated: Mineola, New York November 4, 2015 PLAINTIFF S ADDRESS: MORGAN C. STOVER 129 Blue Heron Drive Secaucus, NJ 07094 DEFENDANTS ADDRESSES: HUDSON S BAY COMPANY 3 Manhattanville Road, Suite 202 Purchase, New York 10577 1 of 33
Yours, etc. WEITZPASCALE By: BRIAN C. PASCALE Local Counsel for Plaintiff 221 Mineola Boulevard Mineola, New York 11501 Tel: (516) 280-4716 Fax: (516) 710-7838 bcpascale@weitzpascale.com LAYFIELD & BARRETT, APC STEVEN WEINBERGER Attorneys for Plaintiff 7135 E. Camelback Road, Suite 230 Scottsdale, Arizona 85251 Tel: (480) 771-3602 Fax: (480) 771-3603 s.weinberger@layfieldbarrett.com HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P. 3 Manhattanville Road, Suite 202 Purchase, New York 10577 HUDSON S BAY COMPANY /HBC DIGITAL 250 Vesey Street, Floor 22 New York, New York 10281 HUDSON S BAY COMPANY /HBC DIGITAL 4 World Financial Center, Floor 22 New York, New York 10281 LORD & TAYLOR LLC c/o Corporation Service Company 80 State Street Albany, New York 12207 SAKS FIFTH AVENUE LLC Attn: Corporate Tax Dept. 12 East 49th Street New York, New York 10017 SAKS FIFTH AVENUE LLC c/o Corporation Service Company 80 State Street Albany, New York 12207 2 of 33
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X MORGAN C. STOVER, -against- Plaintiff, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, SAKS FIFTH AVENUE LLC, JOHN DOES 1 THROUGH 10, JANE DOES 1 THROUGH 10, ABC CORPORATIONS 1 THROUGH 10; and XYZ PARTNERSHIPS 1 THROUGH 10, C O M P L A I N T Index No.: Date Purchased: Defendants. ------------------------------------------------------------------------X Plaintiff, MORGAN C. STOVER, by her attorneys, LAYFIELD & BARRETT, APC and WEITZPASCALE, complaining of the Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, SAKS FIFTH AVENUE LLC, JOHN DOES 1 THROUGH 10, JANE DOES 1 THROUGH 10, ABC CORPORATIONS 1 THROUGH 10; and XYZ PARTNERSHIPS 1 THROUGH 10, respectfully alleges, upon information and belief, the following: PARTIES, JURISDICTIONS AND VENUE 1. At all times relevant herein, Plaintiff, MORGAN C. STOVER, is a resident of Hudson County, New Jersey, and was a resident of Hudson County, New Jersey at all times relevant to this Complaint. 3 of 33
2. At all times relevant herein, Defendant, HUDSON S BAY COMPANY, is a domestic Corporation duly organized and existing under and by virtue of the laws of the State of New York. 3. At all times relevant herein, Defendant, HUDSON S BAY COMPANY, is a foreign Corporation transacting and/or doing and/or conducting and/or soliciting business within the State of New York. 4. At all times relevant herein, Defendant, HUDSON S BAY COMPANY, is a domestic Limited Liability Company duly organized and existing under and by virtue of the laws of the State of New York. 5. At all times relevant herein, Defendant, HUDSON S BAY COMPANY, is a foreign Limited Liability Company transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 6. At all times relevant herein, Defendant, HUDSON S BAY COMPANY, is a domestic Partnership transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 7. At all times relevant herein, Defendant, HUDSON S BAY COMPANY, is a foreign Partnership transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 8. At all times relevant herein, Defendant, HUDSON S BAY COMPANY, is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 4 of 33
9. At all times relevant herein, Defendant, HUDSON S BAY COMPANY, is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York, and has caused events to occur within the County and State of New York that are the subject matter of this Complaint. 10. At all times relevant herein, Defendant, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., is a domestic Corporation duly organized and existing under and by virtue of the laws of the State of New York. 11. At all times relevant herein, Defendant, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., is a foreign Corporation transacting and/or doing and/or conducting and/or soliciting business within the State of New York. 12. At all times relevant herein, Defendant, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., is a domestic Limited Liability Company duly organized and existing under and by virtue of the laws of the State of New York. 13. At all times relevant herein, Defendant, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., is a foreign Limited Liability Company transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 14. At all times relevant herein, Defendant, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., is a domestic Partnership transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 5 of 33
15. At all times relevant herein, Defendant, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., is a foreign Partnership transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 16. At all times relevant herein, Defendant, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 17. At all times relevant herein, Defendant, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York, and has caused events to occur within the County and State of New York that are the subject matter of this Complaint. 18. At all times relevant herein, Defendant, HUDSON S BAY COMPANY/HBC DIGITAL, is a domestic Corporation duly organized and existing under and by virtue of the laws of the State of New York. 19. At all times relevant herein, Defendant, HUDSON S BAY COMPANY/HBC DIGITAL, is a foreign Corporation transacting and/or doing and/or conducting and/or soliciting business within the State of New York. 20. At all times relevant herein, Defendant, HUDSON S BAY COMPANY/HBC DIGITAL, is a domestic Limited Liability Company duly organized and existing under and by virtue of the laws of the State of New York. 6 of 33
21. At all times relevant herein, Defendant, HUDSON S BAY COMPANY/HBC DIGITAL, is a foreign Limited Liability Company transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 22. At all times relevant herein, Defendant, HUDSON S BAY COMPANY/HBC DIGITAL, is a domestic Partnership transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 23. At all times relevant herein, Defendant, HUDSON S BAY COMPANY/HBC DIGITAL, is a foreign Partnership transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 24. At all times relevant herein, Defendant, HUDSON S BAY COMPANY/HBC DIGITAL, is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 25. At all times relevant herein, Defendant, HUDSON S BAY COMPANY/HBC DIGITAL, is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York, and has caused events to occur within the County and State of New York that are the subject matter of this Complaint. 7 of 33
26. At all times relevant herein, Defendant, LORD & TAYLOR LLC, is a domestic Corporation duly organized and existing under and by virtue of the laws of the State of New York. 27. At all times relevant herein, Defendant, LORD & TAYLOR LLC, is a foreign Corporation transacting and/or doing and/or conducting and/or soliciting business within the State of New York. 28. At all times relevant herein, Defendant, LORD & TAYLOR LLC, is a domestic Limited Liability Company duly organized and existing under and by virtue of the laws of the State of New York. 29. At all times relevant herein, Defendant, LORD & TAYLOR LLC, is a foreign Limited Liability Company transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 30. At all times relevant herein, Defendant, LORD & TAYLOR LLC, is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 31. At all times relevant herein, Defendant, LORD & TAYLOR LLC, is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York, and has caused events to occur within the County and State of New York that are the subject matter of this Complaint. 32. At all times relevant herein, Defendant, SAKS FIFTH AVENUE LLC, is a domestic Corporation duly organized and existing under and by virtue of the laws of 8 of 33
the State of New York. 33. At all times relevant herein, Defendant, SAKS FIFTH AVENUE LLC, is a foreign Corporation transacting and/or doing and/or conducting and/or soliciting business within the State of New York. 34. At all times relevant herein, Defendant, SAKS FIFTH AVENUE LLC, is a domestic Limited Liability Company duly organized and existing under and by virtue of the laws of the State of New York. 35. At all times relevant herein, Defendant, SAKS FIFTH AVENUE LLC, is a foreign Limited Liability Company transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 36. At all times relevant herein, Defendant, SAKS FIFTH AVENUE LLC, is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York. 37. At all times relevant herein, Defendant, SAKS FIFTH AVENUE LLC, is a Business Enterprise transacting and/or doing and/or conducting and/or soliciting business within the County of New York and State of New York, and has caused events to occur within the County and State of New York that are the subject matter of this Complaint. 38. By reason of the foregoing, Jurisdiction and Venue are proper in New York County. 39. At all times hereinafter mentioned, Defendants, JOHN DOES 1 THROUGH 10, are individuals subject to suit who breached duties to the Plaintiff 9 of 33
whose true identities and addresses of residences are presently unknown to Plaintiff. Plaintiff reserves her right to amend this Complaint when the identities of said Defendants become known. 40. At all times hereinafter mentioned, Defendants, JANE DOES 1 THROUGH 10, are individuals subject to suit who breached duties to the Plaintiff whose true identities and addresses of residences are presently unknown to Plaintiff. Plaintiff reserves her right to amend this Complaint when the identities of said Defendants become known. 41. At all times hereinafter mentioned, Defendant, ABC CORPORATIONS 1 THROUGH 10, are corporations, or other public or private entities subject to suit which breached duties to the Plaintiff whose true identities and addresses of residences are presently unknown to Plaintiff. Plaintiff reserves her right to amend this Complaint when the identities of said Defendants become known. 42. At all times hereinafter mentioned, Defendant, XYZ PARTNERSHIPS 1 THROUGH 10, are partnerships, or other public or private entities subject to suit which breached duties to the Plaintiff whose true identities are presently unknown to Plaintiff. Plaintiff reserves her right to amend this Complaint when the identities of said Defendants become known. 43. All acts complained of were done by Defendants and/or their authorized agents, servants, and/or employees. 44. All acts complained of were done by Defendants and/or their authorized agents, servants, and/or employees and were performed while in the course and scope 10 of 33
of their employment, so that Defendants are legally responsible for their agents, servants, and/or employees acts. 45. Defendants are not entitled to invoke the limited liability provisions of CPLR Article 16 as this lawsuit falls within one or more of the exceptions set forth in Section 1602 of the CPLR. GENERAL FACTUAL ALLEGATIONS 46. Plaintiff, MORGAN C. STOVER, as a fashion model working in New York City, New York, would occasionally be assigned to Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC., and/or SAKS FIFTH AVENUE LLC, to do full line day shoots. 47. Between the months of May and August, 2015 Plaintiff, MORGAN C. STOVER, was assigned to Defendant, SAKS FIFTH AVENUE LLC, for a full line day shoots. 48. One day in this time frame, the artistic director, an employee of Defendant, SAKS FIFTH AVENUE LLC, stated that they wished to take test photographs of Plaintiff, MORGAN C. STOVER, that were separate from the normal photographs taken for the full line photographs. 49. The artistic director explained to Plaintiff, MORGAN C. STOVER, that the test photographs would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays. 11 of 33
50. The artistic director represented to Plaintiff, MORGAN C. STOVER, that the test photographs would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays. 51. The artistic director guaranteed to Plaintiff, MORGAN C. STOVER, that the test photographs would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays. 52. The artistic director assured to Plaintiff, MORGAN C. STOVER, that the test photographs would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays. 53. The artistic director confirmed to Plaintiff, MORGAN C. STOVER, that the test photographs would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays. 54. For the test photographs, Plaintiff, MORGAN C. STOVER, was dressed in a nude color bra and nude color underwear. 55. The test photographs taken of Plaintiff, MORGAN C. STOVER, consisted of photos taken of her body. 56. Although, Plaintiff, MORGAN C. STOVER, was told these photographs were only for test purposes, the photographs were used by Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, as a mannequin on the Defendants websites, to allow customers to see how clothing for sale would look on them by viewing it on her image. 12 of 33
57. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, did not obtain, nor do they currently have, Plaintiff, MORGAN C. STOVER s, permission, express or implied, to use the test photographs for such a purpose. 58. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, did not obtain, nor do they currently have, Plaintiff, MORGAN C. STOVER s, consent, express or implied, to use the test photographs for such a purpose. 59. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, have not compensated Plaintiff, MORGAN C. STOVER, for the use of her likeness. 60. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, have not compensated Plaintiff, MORGAN C. STOVER, for the misappropriation of her likeness. (Intentionally Left Blank) 13 of 33
AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS INVASION OF PRIVACY THROUGH MISAPPROPRIATION OF LIKENESS 61. Plaintiff repeats, reiterates, and realleges each and every allegation contained in the preceding paragraphs as though fully set forth below. 62. At all relevant times, Plaintiff, MORGAN C. STOVER, had the right of privacy with regard to the use of her likeness as displayed and portrayed on Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, various retail websites. 63. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC have used Plaintiff, MORGAN C. STOVER s, likeness without her or her representatives permission, express or implied. 64. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC have used Plaintiff, MORGAN C. STOVER s, likeness without her or her representatives consent, express or implied. 65. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC have used Plaintiff, 14 of 33
MORGAN C. STOVER s, likeness without her or her representatives authorization, express or implied. 66. Plaintiff, MORGAN C. STOVER, has the right to consent or to prevent others, including Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, from using her likeness for their personal financial gain. 67. Plaintiff, MORGAN C. STOVER, was readily identifiable on Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, retail websites, insofar as one who views the mannequin photographs with a naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use. 68. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, unauthorized and unlawful use of Plaintiff, MORGAN C. STOVER s, likeness was willful, intentional, and knowing and was done for the direct purpose of profiting from and gaining a commercial benefit. 69. As a direct and proximate result of Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., 15 of 33
HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, unauthorized and unlawful use of Plaintiff, MORGAN C. STOVER s, likeness, Plaintiff suffered harm, including but not limited to damage to her reputation and denial of the benefit of the rights of publicity which belong to her. 70. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s conduct was malicious, fraudulent, oppressive and intended to injure Plaintiff, MORGAN C. STOVER, and as a consequence thereof Plaintiff, MORGAN C. STOVER, is entitled to punitive damages. 71. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount in excess of Five Hundred Thousand ($500,000.00) Dollars. 72. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York. AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS VIOLATION OF THE RIGHT OF PUBLICITY 73. Plaintiff repeats, reiterates, and realleges each and every allegation contained in the preceding paragraphs as though fully set forth below. 74. At all relevant times, Plaintiff, MORGAN C. STOVER, had the sole right of publicity with regard to the use of her likeness as displayed and portrayed on Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & 16 of 33
TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, various retail websites. 75. At all relevant times, Plaintiff, MORGAN C. STOVER, had the exclusive right of publicity with regard to the use of her likeness as displayed and portrayed on Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, various retail websites. 76. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, used Plaintiff, MORGAN C. STOVER s, image and likeness without her or her representatives permission, express or implied. 77. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, used Plaintiff, MORGAN C. STOVER s, image and likeness without her or her representatives consent, express or implied. 78. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, used Plaintiff, MORGAN C. STOVER s, image and likeness without her or her representatives authorization, express or implied. 17 of 33
79. Plaintiff, MORGAN C. STOVER, was readily identifiable on Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, retail websites, insofar as one who views the mannequin photographs with a naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use. 80. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, unauthorized and unlawful use of Plaintiff, MORGAN C. STOVER s, likeness was willful, intentional, and knowing and was done for the direct purpose of profiting from and gaining a commercial benefit. 81. As a direct and proximate result of Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s unauthorized and unlawful use of Plaintiff, MORGAN C. STOVER s, likeness, Plaintiff suffered harm, including but not limited to damage to her reputation and denial of the benefit of the rights of publicity which belong to her. 82. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, conduct was malicious, 18 of 33
fraudulent, oppressive and intended to injure Plaintiff, MORGAN C. STOVER, and as a consequence thereof Plaintiff, MORGAN C. STOVER, is entitled to punitive damages. 83. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount in excess of Five Hundred Thousand ($500,000.00) Dollars. 84. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York. AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS FRAUD 85. Plaintiff repeats, reiterates, and realleges each and every allegation contained in the preceding paragraphs as though fully set forth below. 86. At all relevant times during the course of dealing between Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, and Plaintiff, MORGAN C. STOVER, Defendants falsely and intentionally misrepresented that the test photographs would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays. 87. At all relevant times during the course of dealing between Defendants and Plaintiff, MORGAN C. STOVER, Defendants falsely and intentionally misrepresented, omitted, and suppressed that the true purpose of the photographs was that they were to be used by Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING 19 of 33
LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, as a mannequin on the Defendants websites, to allow customers to see how clothing for sale would look on them by viewing it on her image. 88. In representations to Plaintiff, MORGAN C. STOVER, Defendants purposefully and fraudulently concealed the facts itemized above, including and not limited to, that prior to asking Plaintiff to take the photographs, Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, knew, or had reason to know, that the images were to be used as a mannequin on the Defendants websites, to allow customers to see how clothing for sale would look on them by viewing it on her image. 89. In representations to Plaintiff, MORGAN C. STOVER, Defendants fraudulently concealed the facts itemized above, including and not limited to, that prior to asking Plaintiff to take the photographs, Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, knew, or had reason to know, that they were going to use Plaintiff, MORGAN C. STOVER s, likeness for the direct purpose of profiting from and gaining a commercial benefit. 90. When the artistic director explained, confirmed, represented, guaranteed, and assured Plaintiff, MORGAN C. STOVER, that these images would never be used 20 of 33
for commercial purposes, in commercials, advertisements, promotional material, or website displays, Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, knew, or had reason to know, that those representations were false. 91. When the artistic director explained, confirmed, represented, guaranteed, and assured Plaintiff, MORGAN C. STOVER, that these images would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays, Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, knew, or had reason to know, that those representations were fraudulent. 92. When the artistic director falsely and fraudulently explained, confirmed, represented, guaranteed, and assured Plaintiff, MORGAN C. STOVER, that these images would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays, Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, made those misrepresentations with the intent to induce Plaintiff s reliance upon them. 93. When the artistic director falsely and fraudulently explained, confirmed, represented, guaranteed, and assured Plaintiff, MORGAN C. STOVER, that these 21 of 33
images would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays, Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, made those misrepresentations with the intent to induce Plaintiff to model for the test photographs. 94. Plaintiff, MORGAN C. STOVER, relied to her detriment on Defendants intentional and fraudulent misrepresentations as set out above. 95. Plaintiff, MORGAN C. STOVER, justifiably relied to her detriment on Defendants intentional and fraudulent misrepresentations as set out above. 96. Relying on the misrepresentations of Defendants, Plaintiff, MORGAN C. STOVER, modelled for the test photographs. 97. As a direct and proximate result of Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, false and fraudulent misrepresentations to Plaintiff, MORGAN C. STOVER, about the true purpose of the photographs Plaintiff suffered harm, including but not limited to damage to her reputation and denial of the benefit of the rights of publicity which belong to her. 98. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount in excess of Five Hundred Thousand ($500,000.00) Dollars. 22 of 33
99. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS CONSTRUCTIVE FRAUD 100. Plaintiff repeats, reiterates, and realleges each and every allegation contained in the preceding paragraphs as though fully set forth below. 101. At the time Defendants asked Plaintiff, MORGAN C. STOVER, to model for the test photographs, Defendants were in a unique position of knowledge concerning the true purpose she was asked to do so, which knowledge was not possessed by Plaintiff, MORGAN C. STOVER, and Defendants thereby held a position of superiority over Plaintiff. 102. Defendants took unconscionable advantage of its dominant position of knowledge with regard to Plaintiff, MORGAN C. STOVER, and engaged in constructive fraud in its relationship with Plaintiff. 103. Plaintiff, MORGAN C. STOVER, reasonably relied on Defendants representations. 104. Defendants knew of the true purpose they asked Plaintiff to model for the test photographs, but misrepresented, deceived, and concealed that purpose so that they would not have to compensate Plaintiff, MORGAN C. STOVER, and to make a greater profit. 23 of 33
105. Based on the foregoing, Defendants made false statements and misrepresentations of fact in order to secure greater profits for themselves. 106. Based on the foregoing, Defendants false statements and misrepresentations of fact were made with scienter. 107. Based on the foregoing, Defendants false statements and misrepresentations of fact were made with scienter and with an intent that a party would act or refrain from acting in reliance on the misrepresentations. 108. Based on the foregoing, Defendants false statements and misrepresentations of fact were made with scienter and with an intent that a party would act or refrain from acting in reliance on the misrepresentations and Plaintiff suffered pecuniary loss as a result of her reliance thereon. 109. Defendants conduct, acts, and/or omissions were substantial factors in causing injury to Plaintiff, MORGAN C. STOVER. 110. As a direct and proximate result of Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, constructive fraud upon Plaintiff, MORGAN C. STOVER, about the true purpose of the photographs Plaintiff suffered harm, including but not limited to damage to her reputation and denial of the benefit of the rights of publicity which belong to her. 111. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount in excess of Five Hundred Thousand ($500,000.00) Dollars. 24 of 33
112. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS INTENTIONAL MISREPRESENTATION 113. Plaintiff repeats, reiterates, and realleges each and every allegation contained in the preceding paragraphs as though fully set forth below. 114. Defendants expressly denied that they were going to use Plaintiff, MORGAN C. STOVER s, likeness for commercial purposes, in commercials, advertisements, promotional material, or website displays. 115. Defendants having undertaken to use Plaintiff, MORGAN C. STOVER s, likeness as a mannequin on the Defendants websites, to allow customers to see how clothing for sale would look on them by viewing it on her image, owed a duty to Plaintiff to provide accurate and complete information regarding the true purpose she was asked to model for the test photographs. 116. Defendants having undertaken to use Plaintiff, MORGAN C. STOVER s, likeness for commercial purposes, in commercials, advertisements, promotional material, or website displays, owed a duty to Plaintiff to provide accurate and complete information regarding the true purpose she was asked to model for the test photographs. 117. Defendants having undertaken to use Plaintiff, MORGAN C. STOVER s, likeness for the direct purpose of profiting from and gaining a commercial benefit, 25 of 33
owed a duty to Plaintiff to provide accurate and complete information regarding the true purpose she was asked to model for the test photographs. 118. Defendants representations to Plaintiff, MORGAN C. STOVER, falsely and deceptively sought to create the image and impression that the test photographs would never be used for commercial purposes, in commercials, advertisements, promotional material, or website displays. 119. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, purposefully concealed the facts itemized above, including, but not limited to, their intent to use Plaintiff, MORGAN C. STOVER s, likeness as a mannequin on the Defendants websites, to allow customers to see how clothing for sale would look on them by viewing it on her image. 120. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, purposefully concealed the facts itemized above, including, but not limited to, their intent to use Plaintiff, MORGAN C. STOVER s, likeness for the direct purpose of profiting from her image and likeness and gaining a commercial benefit therefrom. 121. Defendants, through their misrepresentations, deceived Plaintiff, MORGAN C. STOVER, as to their intent to use her likeness as a mannequin on the 26 of 33
Defendants websites, to allow customers to see how clothing for sale would look on them by viewing it on her image. 122. Defendants, through their misrepresentations, deceived Plaintiff, MORGAN C. STOVER, as to their intent to use her likeness for the direct purpose of profiting from and gaining a commercial benefit therefrom. 123. Defendants engaged in all the acts and omissions described above with the intent that Plaintiff, MORGAN C. STOVER, would innocently rely on the misrepresentation, deception, and concealment in deciding to model for the test photographs. 124. Plaintiff, MORGAN C. STOVER, relied to her detriment on Defendants intentional and fraudulent misrepresentations as set out above. 125. Plaintiff, MORGAN C. STOVER, justifiably relied to her detriment on Defendants intentional and fraudulent misrepresentations as set out above. 126. This reliance proximately caused the injuries and damages to Plaintiff, MORGAN C. STOVER. 127. As a direct and proximate result of Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC s, intentional misrepresentations to Plaintiff, MORGAN C. STOVER, about the true purpose of the photographs, Plaintiff suffered harm, including but not limited to damage to her reputation and denial of the benefit of the rights of publicity which belong to her. 27 of 33
128. Defendants conduct, acts, and/or omissions were substantial factors in causing injury to the Plaintiff, MORGAN C. STOVER. 129. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount in excess of Five Hundred Thousand ($500,000.00) Dollars. 130. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York. AS AND FOR A SIXTH CAUSE OF ACTION AGAINST ALL DEFENDANTS UNJUST ENRICHMENT 131. Plaintiff repeats, reiterates, and realleges each and every allegation contained in the preceding paragraphs as though fully set forth below. 132. As the intended and expected result of its conscious wrongdoing, Defendants have profited and benefited from Plaintiff, MORGAN C. STOVER s, likeness. 133. Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, have voluntarily accepted and retained these profits and benefits, derived from Plaintiff, MORGAN C. STOVER, with full knowledge and awareness that, as a result of Defendants conscious and intentional wrongdoing, Plaintiff was not compensated at all for her modelling for the test photographs. 28 of 33
134. As a direct result of the foregoing acts, omissions, conscious wrongdoing, negligent misrepresentation, intentional misrepresentation, fraud, constructive fraud, and/or unjust enrichment of Defendants, Plaintiff, MORGAN C. STOVER, Plaintiff suffered harm, including but not limited to damage to her reputation and denial of the benefit of the rights of publicity which belong to her. 135. By virtue of the conscious wrongdoing alleged above, Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, have been unjustly enriched at the expense of the Plaintiff, MORGAN C. STOVER, who is entitled to in equity, and hereby seeks, the disgorgement and restitution of Defendants wrongful profits, revenues and benefits, to the extent and in the amount deemed appropriate by this Honorable Court or jury; and such other relief as this Honorable Court or jury deems just and proper to remedy Defendants unjust enrichment. 136. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount in excess of Five Hundred Thousand ($500,000.00) Dollars. 137. By reason of the foregoing, Plaintiff, MORGAN C. STOVER, has been damaged in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York. (Intentionally Left Blank) 29 of 33
AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST ALL DEFENDANTS PUNITIVE DAMAGES 138. Plaintiff repeats, reiterates, and realleges each and every allegation contained in the preceding paragraphs as though fully set forth below. 139. The malicious and intentional acts by Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC, were so egregious and reckless as to entitle Plaintiff, MORGAN C. STOVER, to an award of Punitive Damages against Defendants. WHEREFORE, Plaintiff, MORGAN C. STOVER, requests judgment against Defendants, HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, and/or SAKS FIFTH AVENUE LLC as follows: in the FIRST CAUSE OF ACTION in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York; in the SECOND CAUSE OF ACTION in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York; in the THIRD CAUSE OF ACTION in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York; in the FOURTH CAUSE OF ACTION in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York; in the FIFTH CAUSE OF ACTION in an amount which exceeds the monetary limits of all courts having 30 of 33
jurisdiction save the Supreme Court of the State of New York; in the SIXTH CAUSE OF ACTION in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York; in the SEVENTH CAUSE OF ACTION in an amount which exceeds the monetary limits of all courts having jurisdiction save the Supreme Court of the State of New York; together with interest, legal fees, costs, and disbursements of this action, and for such other and further relief as the court deems just and proper. Dated: Mineola, New York November 4, 2016 Yours, etc. WEITZPASCALE By: BRIAN C. PASCALE Local Counsel for Plaintiff 221 Mineola Boulevard Mineola, New York 11501 Tel: (516) 280-4716 Fax: (516) 710-7838 bcpascale@weitzpascale.com LAYFIELD & BARRETT, APC STEVEN WEINBERGER Attorneys for Plaintiff 7135 E. Camelback Road, Suite 230 Scottsdale, Arizona 85251 Tel: (480) 771-3602 Fax: (480) 771-3603 s.weinberger@layfieldbarrett.com 31 of 33
VERIFICATION BRIAN C. PASCALE, an attorney duly admitted to practice law before the courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury: Affirmant is local counsel to the Plaintiff in the within action. Affirmant has read the foregoing SUMMONS & COMPLAINT and knows the contents thereof. The same is true of Affirmant s own knowledge, except as to matters therein stated to be alleged upon information and belief, and as to those matters, Affirmant believes them to be true. This verification is made by Affirmant and not by the Plaintiff as Plaintiff does not reside within Nassau County, the county where Affirmant s office is located. The grounds of Affirmant s belief as to all matters not stated upon Affirmant s knowledge are as follows: records, reports, documents, papers, conversations with the attorneys for Plaintiff, conversations with the client concerning the within matter, etc. Dated: Mineola, New York November 4, 2016 BRIAN C. PASCALE 32 of 33
Index No.: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MORGAN C. STOVER, Plaintiff, -against- HUDSON S BAY COMPANY, HUDSON S BAY TRADING COMPANY, L.P. d/b/a HBTC, L.P., HUDSON S BAY COMPANY/HBC DIGITAL, LORD & TAYLOR LLC, SAKS FIFTH AVENUE LLC, JOHN DOES 1 THROUGH 10, JANE DOES 1 THROUGH 10, ABC CORPORATIONS 1 THROUGH 10; and XYZ PARTNERSHIPS 1 THROUGH 10, Defendants. SUMMONS & COMPLAINT WEITZPASCALE Local Counsel for Plaintiff 221 Mineola Boulevard Mineola, New York 11501 Tel: (516) 280-4716 LAYFIELD & BARRETT, APC Attorneys for Plaintiff 7135 E. Camelback Road, Suite 230 Scottsdale, Arizona 85251 Tel: (480) 771-3602 CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. 130-1.1a BRIAN C. PASCALE hereby certifies that, pursuant to 22 N.Y.C.R.R. 130-1.1a, the foregoing SUMMONS & COMPLAINT is not frivolous, nor frivolously presented. Dated: Mineola, New York November 4, 2016 BRIAN C. PASCALE WEITZPASCALE Local Counsel for Plaintiff 33 of 33