Suarez v. Underwood
| Decision Date | 11 March 1980 |
| Citation | 426 N.Y.S.2d 208,103 Misc.2d 445 |
| Parties | , 6 Media L. Rep. 1094 Gilberto SUAREZ, Plaintiff, v. Donald UNDERWOOD, Christine Underwood, Individually and as officers and directors of Underwood Hair Adaption Process, Inc., Underwood Hair Adaption Process, Inc., Barclay's Hair Center, Inc., Kaneka America Corporation, For Men Only Ltd., Newsday, Inc., and Richard Crudo, Defendants. |
| Court | New York Supreme Court |
Harold Wm. Suckenik, New York City, for plaintiff.
Olnick, Seltzer & Boxer, New York City, for defendant Barclay's Hair Center, Inc.
Nager & Gilbert, P.C., Mineola, for defendant Richard Crudo.
Joseph Emmett Soffey, P.C., Jericho, for defendant For Men Only Ltd.
Townley & Updik, New York City, for defendant Newsday.
Olwine, Connelly, Chase, O'Donnell & Weyher, New York City, for defendant Kaneka America Corp.
Defendant Newsday, Inc. (hereinafter "Newsday") moves to dismiss the complaint for failure to state a cause of action or, alternatively, for summary judgment.
Defendant Newsday owns, maintains and operates for profit, a daily newspaper known as "Newsday". It publishes newsworthy articles as well as advertisements. Between April 30, 1978 and September 12, 1978, defendant Newsday ran a series of 13 advertisements by defendant Underwood Hair Adaption Process, Inc. for a process of hair implantation. The complaint alleges that as a result of reading these ads, the plaintiff patronized defendant Underwood Hair Adaption Process, Inc. on or about May 30, 1978; that defendant Dr. Underwood offered a supposed cure for baldness which involved implanting artificial hairs in the scalp; that the process failed and, as a consequence, the plaintiff was injured.
Thirteen causes of action are alleged against various defendants; four are alleged against defendant Newsday, the Tenth, Eleventh, Twelfth and Thirteenth.
The tenth cause of action alleges that Newsday, along with other defendants, conspired to and did offer to sell a hair implantation process to plaintiff; that all the defendants falsely and fraudulently represented the process to be safe for the purpose for which it was intended; that said process was unsafe, and defendants knew or should have known it was unsafe, and as a result plaintiff was injured.
The eleventh and twelfth causes of action repeat the allegations of the tenth cause of action, and seek damages for emotional distress and mental anguish.
The thirteenth cause of action is directed solely at defendant Newsday for gross negligence. Plaintiff contends that Newsday printed and published the advertisements of Underwood Hair Adaption Process, Inc. after having been put on notice of the risks and dangers posed by the process. Plaintiff's contention is based upon the following allegations: Newsday published and printed an investigatory article, dated August 10, 1978, concerning the medical risks attributable to hair implantation; that Newsday was fully aware of the possible risks and injury to the public; that Newsday accepted and continued to publish the Underwood ad for commercial gain. This continued publication is alleged to constitute gross negligence on the part of Newsday, as a result of which the plaintiff sustained injury and damages.
Newsday concedes that it received a letter concerning possible dangers of the artificial hair implantation process, dated December 21, 1978, some three months after Newsday's last advertisement for the Underwood process was published, and further concedes that articles concerning medical criticism of the process appeared in Newsday on January 11, 1979, some four months after Newsday's last advertisement for the Underwood process. Nevertheless, it appears that all the critical articles, whether printed in Newsday or other periodicals, had been printed after plaintiff began treatment with Underwood on May 20, 1978.
In order for a cause of action to lie, the pleadings must set forth "the material elements of each cause of action" (CPLR 3013). In alleging conspiracy, the plaintiff carries the burden of proving (1) the corrupt agreement between two or more persons, (2) an overt act, (3) their intentional participation in the furtherance of a plan or purpose, and (4) the resulting damage. (Vom Lehn v. Astor Art Galleries, Ltd., 86 Misc.2d 1, 380 N.Y.S.2d 532 (1976); 8 N.Y.Jur., Conspiracy, § 4.) "(A)s a rule great latitude is allowed in setting out in the complaint the particular acts from which the conspiracy is to be inferred" (Goldstein v. Siegel, 19 A.D.2d 489, 244 N.Y.S.2d 378 (1st Dept., 1963)). Nevertheless, the facts must be stated in such a manner so that it is possible for the court to see whether or not there is fraud. A mere general allegation of fraud and conspiracy, therefore, is not sufficient to bring a cause of action for conspiracy (Knowles v. City of New York, 176 N.Y. 430, 68...
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