Miller v. Distribution Systems of America, Inc.

• Decision Date: 27 October 1997
• Citation: 670 N.Y.S.2d 668,175 Misc.2d 513
• Parties: , 1998 N.Y. Slip Op. 98,131 Anthony MILLER, Respondent, v. DISTRIBUTION SYSTEMS OF AMERICA, INC., Appellant.
• Court: New York Supreme Court — Appellate Term

Page 668

670 N.Y.S.2d 668

175 Misc.2d 513, 1998 N.Y. Slip Op. 98,131

Anthony MILLER, Respondent, v. DISTRIBUTION SYSTEMS OF AMERICA, INC., Appellant.

Supreme Court, Appellate Term Second Department.

Oct. 27, 1997.

Gibson, Dunn & Crutcher, L.L.P., New York City (Robert D. Sack and Peter J. Beshar, of counsel), for appellant.

Before DiPAOLA, P.J., and COLLINS and INGRASSIA, JJ.

MEMORANDUM.

Judgment affirmed without costs.

In this small claims trial, plaintiff testified that he sent defendant repeated notices to stop the delivery of unsolicited plastic-wrapped parcels containing various items including advertisements and fliers, on his property, and that despite these notifications, defendant continued to deliver the unwanted parcels at his home. Plaintiff therefore sought to recover damages based upon, inter alia, a breach of contract theory. Defendant's witnesses conceded that they had been notified by plaintiff in writing of his request to stop deliveries of the parcels, and testified in substance that they had attempted to take the necessary measures to ensure that no deliveries were made to plaintiff's house. The court below determined that plaintiff failed to establish the existence of a contract and breach thereof, but found that defendant had trespassed on plaintiff's property on three separate occasions by depositing advertised circulars contrary to plaintiff's express prohibition. The court then held that although plaintiff failed to sustain his burden of proof as to actual damages, he was nonetheless entitled to nominal damages, and accordingly awarded plaintiff nominal damages of $1.00 for each act of trespass by defendant.

On appeal, the essence of defendant's argument is that the award of nominal damages was improper because plaintiff acknowledged at trial that he was not claiming any damage to his property, and the court expressly found that plaintiff failed to prove actual damages.

We note initially that plaintiff's cause of action for breach of contract was properly dismissed since plaintiff failed to meet his burden of proving the existence of a contract which defendant breached (see, Miller v. Distribution Systems of America, Inc. NYLJ, 12/11/96, App.Term [9th and 10th Jud.Dists.] ). Moreover, contrary to defendant's contention, the trial court properly awarded nominal damages on the cause of action for trespass.

The limited right to recover nominal damages in an action for trespass to real property is appropriate where needed to protect an important right, even in the absence of any substantial loss or injury (see, 17 Carmody-Wait 2d, N.Y.Prac. § 107:89; Kronos v. AVX Corp. 81 N.Y.2d 90, 95, 595 N.Y.S.2d 931, 612 N.E.2d 289). The United States Supreme Court "has traditionally respected the right of a householder to...