Guggenheimer v. Ginzburg

CourtNew York Court of Appeals
Writing for the CourtCOOKE; BREITEL
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.
Decision Date15 December 1977

Page 182

401 N.Y.S.2d 182
43 N.Y.2d 268, 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.
Court of Appeals of New York.
Dec. 15, 1977.

Page 183

W. Bernard Richland, Corp. Counsel, New York City (L. Kevin Sheridan, David B. Saxe and David Ira Blejwas, New York City, of counsel), for appellant.

Gerald P. Halpern, P. C., Mineola, for respondent.

OPINION OF THE COURT

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

Page 184

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...

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1675 practice notes
  • Weinberg v. Picker, Index No.: 510746/2015
    • United States
    • United States State Supreme Court (New York)
    • April 24, 2017
    ...to the party asserting the claim, and accepting as true the factual allegations set forth therein (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; LoPinto v. J.W. Mays, Inc., 170 A.D.2d 582, 583, 566 N.Y.S.2d 357), neither party adequately pleaded a cause ......
  • Bua v. Purcell & Ingrao, P.C.
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 2012
    ...and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate” ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;see Jannetti v. Whelan, 97 A.D.3d 797, 949 N.Y.S.2d 129). In an action to recover damages for legal m......
  • Kosmider v. Garcia, No. 924–10.
    • United States
    • United States State Supreme Court (New York)
    • July 13, 2012
    ...Cons.Laws of NY, Book 7B, CPLR 3211:24, p. 31; 4 Weinstein–Korn–Miller, N.Y. CivPrac, par. 3211.36)” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 185, 372 N.E.2d 17, 20). “By the plain terms of § 1983, two—and only two—allegations are required in order to state a cause o......
  • E. Williamson Roofing and Sheet Metal Co., Inc. v. Town of Parish
    • United States
    • New York Supreme Court — Appellate Division
    • July 7, 1988
    ...however, to the majority view that the first cause of action, when liberally and fairly construed ( see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17), does not state a cause of action in negligence for the Town's failure to comply with Section 220 (3-a)(a) ......
  • Request a trial to view additional results
1674 cases
  • Weinberg v. Picker, Index No.: 510746/2015
    • United States
    • United States State Supreme Court (New York)
    • April 24, 2017
    ...to the party asserting the claim, and accepting as true the factual allegations set forth therein (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; LoPinto v. J.W. Mays, Inc., 170 A.D.2d 582, 583, 566 N.Y.S.2d 357), neither party adequately pleaded a cause ......
  • Bua v. Purcell & Ingrao, P.C.
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 2012
    ...and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate” ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;see Jannetti v. Whelan, 97 A.D.3d 797, 949 N.Y.S.2d 129). In an action to recover damages for legal m......
  • Kosmider v. Garcia, No. 924–10.
    • United States
    • United States State Supreme Court (New York)
    • July 13, 2012
    ...Cons.Laws of NY, Book 7B, CPLR 3211:24, p. 31; 4 Weinstein–Korn–Miller, N.Y. CivPrac, par. 3211.36)” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 185, 372 N.E.2d 17, 20). “By the plain terms of § 1983, two—and only two—allegations are required in order to state a cause o......
  • E. Williamson Roofing and Sheet Metal Co., Inc. v. Town of Parish
    • United States
    • New York Supreme Court — Appellate Division
    • July 7, 1988
    ...however, to the majority view that the first cause of action, when liberally and fairly construed ( see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17), does not state a cause of action in negligence for the Town's failure to comply with Section 220 (3-a)(a) ......
  • Request a trial to view additional results

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