Shiffman v. Empire Blue Cross & Blue Shield

Appellate Division of the Supreme Court of New York

Shiffman v. Empire Blue Cross & Blue Shield

256 A.D.2d 131, 681 N.Y.S.2d 511, 27 Media L. Rep. (BNA) 1479, 1998 N.Y. App. Div. LEXIS 14517

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 1998

StatusPublished

Cited by11 cases

This text of 256 A.D.2d 131 (Shiffman v. Empire Blue Cross & Blue Shield) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Shiffman v. Empire Blue Cross & Blue Shield, 256 A.D.2d 131, 681 N.Y.S.2d 511, 27 Media L. Rep. (BNA) 1479, 1998 N.Y. App. Div. LEXIS 14517 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about May 6, 1998, which, to the extent appealed from as limited by appellants’ brief, granted plaintiffs motion to dismiss defendants’ first, third, fourth and fifth affirmative defenses and denied defendants’ cross motion to dismiss the complaint for failure to state a cause of action, unanimously modified, on the law, the cross motion granted to the extent of dismissing the claim for punitive damages, and otherwise affirmed, without costs.

In this action for civil trespass, it is undisputed that defendants gained entry to plaintiffs private medical office by having a reporter pose as a potential patient using a false identity and bogus insurance card. We agree with the motion court that defendants’ affirmative defenses based upon consent and implied consent to enter the premises were legally insufficient since consent obtained by misrepresentation or fraud is invalid (see, Restatement [Second] of Torts § 330, comment g; People v Thompson, 116 AD2d 377, 381) and also agree that the affirmative defense premised upon State and Federal constitutional free speech guarantees is without merit as such guarantees confer no privilege for trespass.

While the motion court properly denied defendants’ cross motion to dismiss the complaint for failure to state a cause of action based on plaintiffs alléged failure to plead actual damages, plaintiffs claim for punitive damages should be dismissed. Although plaintiff failed to allege any actual damage to his possessory interest by reason of the reporter’s unlawful, yet non-disruptive, entry into his private medical office, nominal damage is always presumed from a trespass (see, Kronos, Inc. v AVX Corp., 81 NY2d 90, 95; Butler v Ratner, 173 Misc 2d 783). Punitive damages, however, are not recoverable inasmuch as there is no evidence the complained-of trespass was motivated by malice. Concur — Lerner, P. J., Williams, Tom and Andrias, JJ.

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—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about May 6, 1998, which, to the extent appealed from as limited by appellants’ brief, granted plaintiffs motion to dismiss defendants’ first, third, fourth and fifth affirmative defenses and denied defendants’ cross motion to dismiss the complaint for failure to state a cause of action, unanimously modified, on the law, the cross motion granted to the extent of dismissing the claim for punitive damages, and otherwise affirmed, without costs.

In this action for civil trespass, it is undisputed that defendants gained entry to plaintiffs private medical office by having a reporter pose as a potential patient using a false identity and bogus insurance card. We agree with the motion court that defendants’ affirmative defenses based upon consent and implied consent to enter the premises were legally insufficient since consent obtained by misrepresentation or fraud is invalid (see, Restatement [Second] of Torts § 330, comment g; People v Thompson, 116 AD2d 377, 381) and also agree that the affirmative defense premised upon State and Federal constitutional free speech guarantees is without merit as such guarantees confer no privilege for trespass.

While the motion court properly denied defendants’ cross motion to dismiss the complaint for failure to state a cause of action based on plaintiffs alléged failure to plead actual damages, plaintiffs claim for punitive damages should be dismissed. Although plaintiff failed to allege any actual damage to his possessory interest by reason of the reporter’s unlawful, yet non-disruptive, entry into his private medical office, nominal damage is always presumed from a trespass (see, Kronos, Inc. v AVX Corp., 81 NY2d 90, 95; Butler v Ratner, 173 Misc 2d 783). Punitive damages, however, are not recoverable inasmuch as there is no evidence the complained-of trespass was motivated by malice. Concur — Lerner, P. J., Williams, Tom and Andrias, JJ.

Food Lion, Incorporated v. Capital Cities/abc, Inc. Lynne Litt, A/K/A Lynne Neufes Abc Holding Company American Broadcasting Companies, Incorporated Richard N. Kaplan Ira Rosen Susan Barnett, Advance Publications, Incorporated Associated Press the Association of American Publishers CBS Broadcasting, Incorporated Cable News Network, Incorporated Gannett Company, Incorporated the Hearst Corporation King World Productions, Incorporated McClatchy Newspapers, Incorporated the National Association of Broadcasters National Broadcasting Company, Incorporated the Newspaper Association of America National Public Radio, Incorporated the New York Times Company the Radio-Television News Directors Association the Reporters Committee for Freedom of the Press Investigative Reporters Editors, Incorporated National Grocers Association International Mass Retail Association William E. Lee John Demott Robert Ellis Smith Mike Rosen Accuracy in Media Media Esearch Center Atlantic Legal Foundation Southeastern Legal Foundation, Amici Curiae. Food Lion, Incorporated v. Capital Cities/abc, Inc. Lynne Litt, A/K/A Lynne Neufes Abc Holding Company American Broadcasting Companies, Incorporated Richard N. Kaplan Ira Rosen Susan Barnett, Advance Publications, Incorporated Associated Press the Association of American Publishers CBS Broadcasting, Incorporated Cable News Network, Incorporated Gannett Company, Incorporated the Hearst Corporation King World Productions, Incorporated McClatchy Newspapers, Incorporated the National Association of Broadcasters National Broadcasting Company, Incorporated the Newspaper Association of America National Public Radio, Incorporated the New York Times Company the Radio-Television News Directors Association the Reporters Committee for Freedom of the Press National Grocers Association International Mass Retail Association William E. Lee John Demott Robert Ellis Smith Mike Rosen Accuracy in Media Media Research Center Atlantic Legal Foundation Southeastern Legal Foundation, Amici Curiae

194 F.3d 505 (Fourth Circuit, 1999)

Food Lion, Inc. v. Capital Cities/ABC, Inc.

194 F.3d 505 (Fourth Circuit, 1999)

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256 A.D.2d 131, 681 N.Y.S.2d 511, 27 Media L. Rep. (BNA) 1479, 1998 N.Y. App. Div. LEXIS 14517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shiffman-v-empire-blue-cross-blue-shield-nyappdiv-1998.

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