LaLumia v. Schwartz
| Decision Date | 08 March 1965 |
| Citation | 257 N.Y.S.2d 348,23 A.D.2d 668 |
| Parties | Joseph LaLUMIA, Respondent, v. Arthur SCHWARTZ and Monarch Press, Inc., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Harold Davis, New York City, for appellant; Andrew P. Davis, New York City, or counsel.
Rita R. F. Brettschneider, Huntington, for respondent.
Before BELDOCK, P. J., and UGHETTA, CHRIST, BRENNAN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In an action, pursuant to Section 51 of the Civil Rights Law, to recover damages for the invasion of privacy, the defendants appeal from so much of an order of the Supreme Court, Nassau County, entered July 1, 1964, as, in denying their motion, made pursuant to statute (CPLR 3024, subds. [a and b]; CPLR 3015, Subd. [d]), to require plaintiff to serve an amended complaint, declared: (1) that the complaint stated a good cause of action against both defendants; and (2) that damages for mental stress are recoverable.
Order modified by striking out the provision that the complaint states a good cause of action, and by substituting therefor two provisions: (a) a provision granting defendants' motion to the further extent of dismissing the complaint on the ground that it fails to state a good cause of action; and (b) a provision permitting plaintiff to serve an amended complaint. As so modified, the order, insofar as appealed from, is affirmed without costs. Plaintiff may serve the amended complaint within thirty days after entry of the order hereon.
While the defendants' motion was not also made under CPLR 3211 (subd. [a], par. 7) to dismiss the complaint for failure to state a cause of action, as it should have been, nevertheless the parties and the Special Term have treated the motion as though it were so made. We have done likewise. Since the question of the sufficiency of the complaint was involved and was presented and adjudicated, and since all the parties have proceeded on this appeal to argue the sufficiency of the complaint, the court has ignored the technical defect in procedure and has determined the substantive issues raised.
In our opinion, the complaint as presently framend is insufficient. It lacks the allegation that plaintiff's name was used within this state. Such allegation is essential (Cardy v. Maxwell, 9 Misc.2d 329, 169 N.Y.S.2d 547; Pittera v. Parade Publications, Inc., 30 Misc.2d 706, 219 N.Y.S.2d 998, modified on other grounds, 15 A.D.2d 882, 225 N.Y.S.2d 478). If, in fact, plaintiff's name was...
To continue reading
Request your trial
-
State of N.Y. v. Shore Realty Corp.
...of the corporation. See State v. Ole Olsen, Ltd., 35 N.Y.2d 979, 324 N.E.2d 886, 365 N.Y.S.2d 528 (1975); LaLumia v. Schwartz, 23 A.D.2d 668, 669, 257 N.Y.S.2d 348, 350 (1965). We need not address whether he is liable merely as an officer of Shore, for it is beyond dispute that LeoGrande sp......
-
Gregoris Motors v. Nissan Motor Corp. in USA
...482 N.Y.S.2d at 869; Bailey v. Baker's Air Force Gas Corp., 50 A.D.2d 129, 376 N.Y.S.2d 212 (3d Dep't 1975); LaLumia v. Schwartz, 23 A.D.2d 668, 257 N.Y.S.2d 348 (2d Dep't 1965). The alleged taking and demanding of bribes and concomitant fraud are such tortious wrongs performed for personal......
-
City of Newburgh v. SARNA
...(holding individual defendant personally liable for public nuisance without piercing the corporate veil) (citing LaLumia v. Schwartz, 23 A.D.2d 668, 257 N.Y.S.2d 348, 350 (1965)). Further, "This general rule is particularly appropriate in the public nuisance context where everyone who ... p......
-
Frazier v. Turning Stone Casino
...violates § 51 may be held personally liable even if he was acting as a representative of a corporation. See LaLumia v. Schwartz, 23 A.D.2d 668, 669, 257 N.Y.S.2d 348 (2d Dep't 1965). Accordingly, allegations in the amended complaint concerning the employment or representative status of the ......