Glaub Jewelers, Inc. v. New York Daily News
| Decision Date | 29 November 1988 |
| Citation | 141 Misc.2d 890,535 N.Y.S.2d 532 |
| Parties | , 16 Media L. Rep. 1269 GLAUB JEWELERS, INC., Plaintiff, v. NEW YORK DAILY NEWS and Badalamenti Advertising Agency, Ltd., Defendants. |
| Court | New York City Court |
Julius Okin, Brooklyn, for plaintiff Glaub Jewelers, Inc.
Sidley & Austen by Andrew P. Missan, New York City, for defendant New York Daily News.
No appearance for Badalamenti Advertising Agency, Ltd.
This is a motion, brought on by defendant, New York Daily News, for an order dismissing the complaint of the plaintiff for failure to state a cause of action.
Plaintiff's complaint alleges:
THAT, on February 6, 1986, plaintiff paid the sum of three hundred and ten ($310.00) dollars to the Co-Defendant, Badalamenti Advertising Agency, Ltd., for an advertisement, that was to appear in the New York Daily News, Kings Shopping Showcase, on Sunday, February 9, 1988. (Plaintiff's Complaint, Para. 2.)
The complaint goes on to allege that the advertisement had been omitted from defendant's publication of February 9, and that "as a result of said omission and gross negligence ... many customers who would be drawn by the advertisement did not appear" ) and that plaintiff was damaged in the sum of twenty-five thousand ($25,000.00) dollars from loss of anticipated profits.
The gravamen of defendant's motion is that a newspaper owes no duty to the merchant to print the advertisement.
It has been established by law, for a plaintiff to recover on a negligence claim it must successfully demonstrate "a right, a wrong, and a remedy." There must be a duty owed to the plaintiff by the defendant, and a breach of that duty, caused the plaintiff to sustain damages. "Whether a duty exists presents a question of law to be determined by the court based upon the facts and circumstances of the case." Vogel v. West Mountain Corp., 97 A.D.2d 46, 48, 470 N.Y.S.2d 475. "While a court might impose a duty where none existed before, extreme care must always be exercised." Vogel, supra, citing, Pulka v. Edelman, 40 N.Y.2d 781, 786; DeAngelis v. Lutheran Med. Center, 84 A.D.2d 17, 22, aff'd 58 N.Y.2d 1053; see Moore v. Shah, 90 A.D.2d 389, 458 N.Y.S.2d 33. Thus, the first issue to be determined by this court is whether the defendant, newspaper publisher, owed any duty to the plaintiff, merchant, to publish its advertisement. The overwhelming majority of cases throughout the country follow the general proposition that "the business of publishing a newspaper is a strictly private enterprise, as distinguished from a business affected with a public interest, and that its publisher is under no legal obligation to sell advertising to all who may apply for it." Poughkeepsie Buying Service, Inc. v. Poughkeepsie Newspapers, Inc., 205 Misc. 982, 983, 131 N.Y.S.2d 515, citing 87 ALR 979.
Following the principle set forth in the above cited case this court finds that no duty existed between the movant and the plaintiff.
"New York long ago held that a news service is not liable to its readers for negligent false statements. (Jaillet v. Cashman, 115 Misc. 383, 189 N.Y.S. 743 (1921), aff'd 202 A.D. 805, 194 N.Y.S. 947 (1922), aff'd 235 N.Y. 511, 139 N.E. 714 (1923)." Daniel v. Dow Jones & Co., 137 Misc.2d 94, 96, 520 N.Y.S.2d 334. A news service is not liable for negligent statements absent a specific duty or special relationship between the parties. Daniel v. Dow Jones, supra.
The Appellate Division, Second Department has definitively stated, in the case of Pressler v. Dow Jones and Company, Inc., 88 A.D.2d 928, 450 N.Y.S.2d 884 (1982) "there was no basis for recovery for an alleged negligent misstatement [of a newspaper advertisement] since no special relationship existed between the parties (see, International Products Co. v. Erie R.R. Co., 244 N.Y. 331, 337-338, 155 N.E. 662; Jaillet v. Cashman, 115 Misc. 383, 189 N.Y.S. 743, aff'd 202 A.D. 805, 194 N.Y.S. 947, aff'd 235 N.Y. 511, 139 N.E. 714.)"
In the case at bar plaintiff seeks redress for defendant's nonfeasance and not for misfeasance in publishing an inaccurate advertisement....
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Greco v. Journal News, 2004 NY Slip Op 50704(U) (NY 6/24/2004)
...the news service itself (see Jaillet, supra; Pressler v. Dow Jones & Company, Inc., 88 A.D.2d 928 [2d Dept. 1982]; Glaub Jewelers, Inc. v. New York Daily News, 141 Misc.2d 890 [Civ. Ct. Kings Co. 1988]; Daniel v. Dow Jones & Company, Inc., 137 Misc.2d 94 [Civ. Ct. N.Y. Co. 1987]; Suarez v. ......