Guggenheimer v. Ginzburg

Decision Date15 December 1977
Citation401 N.Y.S.2d 182,372 N.E.2d 17,43 N.Y.2d 268
Parties, 372 N.E.2d 17 Elinor GUGGENHEIMER, as Commissioner of the Department of Consumer Affairs of the City of New York, Appellant, v. Ralph GINZBURG, doing business as the Webster's Dictionary Company, Respondent.
CourtNew York Court of Appeals Court of Appeals

COOKE, Judge.

Noah Webster, whose name in this country became synonymous with the word dictionary, completed his "American Dictionary of the English Language" about a century and a half before this controversy involving defendant's advertising of a volume entitled "Webster's Encyclopedic Dictionary of the English Language".

In early 1975, defendant filed in the County Clerk's Office of New York County a certificate of conducting business under the name of "The Webster's Dictionary Company". His subsequent commercial announcements in various well-known publications brought forth this suit by the Commissioner of Consumer Affairs of the City of New York, pursuant to the Consumer Protection Law of 1969 (Administrative Code of City of New York, c. 64, tit. A), seeking among other things a permanent injunction enjoining the continued advertising that the dictionary is the authentic Webster's, that its list price is.$39.95, that there is any list price for it unless it is genuine within the meaning of said law, that the Webster's Dictionary Company is the publisher, that the reason for the price of $19.95 is the depressed economy and that $19.95 is an unprecedented low price for this dictionary.

When plaintiff moved for an injunction restraining such advertising during the pendency of the action, Special Term held that "not only has plaintiff failed to show that there is a clear right to relief, but has also totally failed to state a cause of action" and under "such circumstances" the court felt "compelled to exercise its sua sponte powers to dismiss the complaint as hereinafter directed". 1 The Appellate Division, two Justices dissenting, affirmed. The majority observed that arguably the complaint does state a cause of action but that a pragmatic view indicates only a slight chance of ultimate success. As a matter of discretion, it allowed the condition in Special Term's order to stand.

It has been stated that a motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading (see, e. g., Shapiro v. City of New York, 67 Misc.2d 1021, 1028, 325 N.Y.S.2d 787, 794, affd. 32 N.Y.2d 96, 343 N.Y.S.2d 323, 296 N.E.2d 230, app. dsmd. 414 U.S. 804, 94 S.Ct. 68, 38 L.Ed.2d 40, mot. for reh. den. 414 U.S. 1087, 94 S.Ct. 609, 38 L.Ed.2d 493; Leonard v. John Hancock Mut. Life Ins. Co., 118 N.Y.S.2d 170, 171, affd. 281 App.Div. 859, 119 N.Y.S.2d 918; Challenger v. Household Fin. Corp., 179 Misc. 966, 40 N.Y.S.2d 465, affd. 266 App.Div. 844, 43 N.Y.S.2d 517). If it be deemed that Special Term granted summary judgment in favor of defendant, in so doing it disregarded CPLR 3211 (subd. (c)), as amended, which so far as pertinent requires that upon a motion for dismissal upon the ground that the pleading fails to state a cause of action, under paragraph 7 of subdivision (a), the court, "after adequate notice to the parties", may treat the motion as one for summary judgment. Since there was no notice, there could be no conversion to a summary judgment motion, even on the court's initiative, and the affidavits were received for a limited purpose only, a purpose unconnected with summary judgment (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 316, 357 N.E.2d 970, 972). Hence, the proper focus is on whether the complaint states a cause of action.

In this State, the Legislature has declared deceptive acts and practices and false advertising in the conduct of any business to be unlawful (General Business Law, § 349, subd. (a); § 350; see, also, Executive Law, § 63, subd. 12), and the City of New York has in its Administrative Code a prohibition against engaging "in any deceptive * * * trade practice in the sale * * * or in the offering for sale * * * of any consumer goods" ( § 2203d-1.0). A deceptive trade practice is defined in part as "(a)ny false * * * or misleading * * * written statement * * * or other representation of any kind made in connection with the sale * * * or in connection with the offering for sale * * * of consumer goods * * * which has the capacity, tendency or effect of deceiving or misleading customers" ( § 2203d-2.0). Whenever any person has engaged in any acts or practices constituting violations of any provision of said title A or any rule or regulation promulgated thereunder, the City of New York is authorized to make application for an order enjoining such acts or practices and for a temporary or permanent injunction, restraining order or other order of enjoinment ( § 2203d-4.0, subd. d). To establish such a cause of action, it need not be shown that consumers are being or were actually injured ( § 2203d-4.0, subd. e). In weighing a statement's capacity, tendency or effect in deceiving or misleading customers, we do not look to the average customer but to the vast multitude which the statutes were enacted to safeguard including the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions (cf. People v. Volkswagen of Amer., 47 A.D.2d 868, 366 N.Y.S.2d 749; Floersheim v. Weinburger, D.C., 346 F.Supp. 950, 957).

The complaint basically states that plaintiff is the Commissioner of the Department of Consumer Affairs of the City of New York, that the action is instituted pursuant to the Administrative Code (ch. 64, tit. A), that defendant has filed a certificate of conducting business under the name of the Webster Dictionary Company with a principal place of business at 1775 Broadway, New York, New York, and that defendant is in the business of selling Webster's Encyclopedic Dictionary of the English Language through the mails, orders being obtained through the use of mass newspaper advertising in the City of New York. Copies of defendant's advertisements are annexed. Four causes of action are declared, in the first of which it is asserted that defendant advertises said dictionary as "The Authentic Webster's", that there is no authentic Webster's dictionary in existence, and that this representation of authenticity constitutes a violation of section 2203d-2.0 (subd. a, par. (1)) of the Consumer Protecti Law in that defendant makes claim that the dictionary he sells is of a particular standard, quality, grade or model which is not true. 2

In the second, plaintiff alleges that defendant advertises that he is selling a.$39.95 list price dictionary for only $19.95, that plaintiff's department has found upon investigation that no retailer of books in New York City who was questioned sold said volume for.$39.95, and that this representation as to a list of.$39.95 violates subdivision (3) of regulation 13.7 of the Consumer Protection Law Regulations 3 in that the list price is not...

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