Nationwide Carpets, Inc. v. Lenett Publications, Inc.

31 A.D.2d 911, 298 N.Y.S.2d 95, 1969 N.Y. App. Div. LEXIS 4388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1969
• Status: Published

Opinion

Order entered on June 5, 1967, denying defendant’s motion to dismiss the first and fourth causes of action in the amended complaint, unanimously modified, on the law, to the extent of dismissing the fourth cause of action and otherwise affirmed, without costs and without disbursements. Plaintiff may not, in its fourth cause of action, combine the three articles published by defendant, wbi-eh form the bases of the first three causes of action sounding in libel, and seek to recover on the theory of prima facie tort. Where, as appears from the amended complaint, reliance is placed on specific tortious acts, the remedy is not in prima facie tort. (Bum v. Bum, 286 App. Div. 767, 769.) “A cause of action based on an alleged prima facie tort is insufficient when its basic allegations constitute grounds for a cause of action based on a ‘traditional tort’ such as libel.” (Holt v. Columbia Broadcasting System, 22 A D 2d 791, 792.) Concur — Stevens, P. J., Capozzoli, McGivern, Markewich and Nunez, JJ.