| Learning Annex Holdings, LLC v Gittelman |
| 2008 NY Slip Op 00993 [48 AD3d 211] |
| February 5, 2008 |
| Appellate Division, First Department |
| Learning Annex Holdings, LLC, Appellant, v MartinGittelman, Respondent. |
—[*1] Lewis, Clifton & Nikolaidis, P.C., New York City (Elaine Smith of counsel), forrespondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 6, 2006, whichgranted defendant's motion for summary judgment dismissing the complaint, unanimouslyaffirmed, with costs.
Dismissal of the complaint was appropriate in this action where plaintiff seeks damagesbased on defendant's admitted actions of removing every copy of plaintiff's catalogue from itsmagazine/catalogue distribution box located on a street corner in defendant's neighborhood andthrowing them in the garbage because, in his view, they contributed to litter in the area. Therecord evidence establishes that plaintiff's cause of action for tortious interference withprospective business relations is not viable since plaintiff has failed to identify any specificcustomers it would have obtained but for defendant's actions (see Vigoda v DCA Prods.Plus, 293 AD2d 265, 266-267 [2002]). The conversion cause of action fails because plaintiffadmits that the catalogues are free for the taking and anyone can take as many as they desire andtherefore, plaintiff cannot demonstrate a superior possessory right to the catalogues (seeGaltieri v Kramer, 232 AD2d 369 [1996]). Furthermore, dismissal of the prima facie tortcause of action was proper where the evidence demonstrates that no reasonable jury couldconclude that defendant was motivated solely by "disinterested malevolence" (Burns JacksonMiller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983], quoting American Bank& Trust Co. v Federal Reserve Bank of Atlanta, 256 US 350, 358 [1921]), and whereplaintiff failed to sufficiently establish that it sustained special [*2]damages (see Vigoda, 293 AD2d at 266). Plaintiff hasraised no challenge to the court's dismissal of its fourth cause of action for a permanentinjunction. Concur—Lippman, P.J., Mazzarelli, Friedman, Sweeny and Moskowitz, JJ.