Hecht v. Air Reduction Co.

• Decision Date: 17 December 1963
• Citation: 245 N.Y.S.2d 935,41 Misc.2d 463
• Parties: Max HECHT and William Manetta, doing business as Chelsea Carbonic & Repair Service, Pincus Benowitz and Albert Benowitz, doing business as Broadway Carbonic and Repair Service, and Carbonic Gas & Service Corp., Plaintiffs, v. AIR REDUCTION COMPANY, Inc., Pure Carbonic Company and Hygrade Compressed Gas Corp., Defendants.
• Court: New York Supreme Court

Page 935

245 N.Y.S.2d 935

41 Misc.2d 463

Max HECHT and William Manetta, doing business as Chelsea Carbonic & Repair Service, Pincus Benowitz and Albert Benowitz, doing business as Broadway Carbonic and Repair Service, and Carbonic Gas & Service Corp., Plaintiffs, v. AIR REDUCTION COMPANY, Inc., Pure Carbonic Company and Hygrade Compressed Gas Corp., Defendants.

Supreme Court, Special Term, Queens County, Part I.

Dec. 17, 1963.

Sale & Sale, New York City, for plaintiffs.

DeZorett & Venner, New York City, for defendant Hygrade Compressed Gas Corp.

Shearman & Sterling, New York City, for defendant Air Reduction Co., Inc.

JAMES J. CRISONA, Justice.

Defendant Hygrade Compressed Gas Corp. (hereinafter referred to as 'Hygrade') and defendant Air Reduction Company, Inc. (hereinafter referred to as 'Air Reduction') move, by separate notice of motion, to dismiss the complaint for legal insufficiency.

Since both motions were submitted to the court several months after the effective date of the Civil Practice Law and Rules, the court shall treat the motions as though made under rule 3211(a)7 of the new procedure. (Cf. W. T. Grant Company v. Uneeda Doll Company, Inc., 19 A.D.2d 361, 243 N.Y.S.2d 428 [App.Div. 1st Dept.].)

This is an action concededly intended to be based upon prima facie tort. The complaint consists of two causes of action against all of the defendants, the first by plaintiff Chelsea Carbonic & Repair Service (hereinafter referred to as 'Chelsea') and plaintiff Broadway Carbonic and Repair Service (hereinafter referred to as 'Broadway') and the second by plaintiff Carbonic Gas & Service Corp. (hereinafter referred to as 'Carbonic Gas').

Plaintiffs are apparently in the business of selling compressed gas in cylinders to retail customers. From 1951 plaintiff Chelsea purchased compressed gas from a jobber of defendant Air Reduction. From 1949 until January 4, 1963 plaintiff Broadway purchased compressed gas from defendant Hygrade.

In their cause of action, plaintiffs Chelsea and Broadway allege, in pertinent part, as follows: They advised defendant Air Reduction that they 'wished to fill their own cylinders rather than to have this performed by others, and in accordance therewith wished to purchase the gas in bulk from the defendant, Air Reduction Company, Inc. and also the machinery necessary to store and dispense the said compressed gas' and 'that it would be necessary for the defendant, Air Reduction Company, Inc. to supply these plaintiffs with carbonic gas cylinders.' Defendant Air Reduction refused to supply plaintiffs with the gas cylinders and thereafter leased them and sold gas at a reduced price to defendant Hygrade. The latter had been in the wholesale business of buying and selling all types of gas for the past twenty-five years but entered the retail business of selling compressed gas in cylinders to consumers, including those previously serviced by plaintiffs, for the sole purpose of maliciously injuring the business of plaintiffs Chelsea and Broadway. Defendant Air Reduction assisted and cooperated with defendant Hygrade and, as a result of the latter's reduced price and conduct in operating its business at a loss, plaintiffs were caused to lose many of their own customers. Defendants 'made statements to the plaintiffs and others that their going into the retail business was solely for the purpose of 'knocking the brains out of the plaintiffs' and that they would 'teach them a lesson that they would never forget', because the plaintiffs had stopped buying the products of the defendants.' As a result of the foregoing plaintiffs 'have lost sixty-five customers and have been compelled to drastically reduce prices to fifty-two other customers, all to the damage of the plaintiffs in the sum of NINETY TWO THOUSAND FIVE HUNDRED ($92,500.00) DOLLARS to the date of the issuance of this complaint * * *.'

In the second cause of action, plaintiff Carbonic Gas alleges, pertinently, that defendants' aforesaid acts were committed with 'deliberate design and solely for the purpose of injuring plaintiffs in the first cause of action.' Consequently, its own customers were also solicited by said defendants in furtherance of said design. As a result of the foregoing plaintiff 'has lost to the defendants thirty-five customers and has been caused to reduce prices to forty other customers all to its damage in the sum of SIXTY-FIVE THOUSAND ($65,000.00) DOLLARS * * *.'

'The key to the prima facie tort is the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or a series of acts which would otherwise be lawful. The need for the doctrine of prima facie tort arises only because the specific acts relied upon--and which it is asserted caused the injury--are not, in the absence of the intention to harm, tortious, unlawful, and therefore, actionable. The remedy is invoked when the intention to harm, as distinguished from the intention merely to commit the act, is present, has motivated the action, and has caused the injury to plaintiff, all without excuse or justification.' (Ruza v. Ruza, 286 App.Div. 767, 769, 146 N.Y.S.2d 808, 811.)

The action of defendants must be 'solely the conception and birth of malicious motives' and where 'there were also legitimate purposes the rule seems to be perfectly well established that there is no liability.' (Beardsley v. Kilmer, 236 N.Y. 80, 89, 140 N.E. 203, 205, 27 A.L.R. 1411.) '* * * the genesis which will make a lawful act...