Zausner v. Fotochrome, Inc.

• Decision Date: 18 December 1962
• Citation: 18 A.D.2d 649,235 N.Y.S.2d 698
• Parties: Sam ZAUSNER and Philip A. Rosen, Plaintiffs-Respondents, v. FOTOCHROME, INC. and Frank Nadaline, Jr., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 698

235 N.Y.S.2d 698

18 A.D.2d 649

Sam ZAUSNER and Philip A. Rosen, Plaintiffs-Respondents, v. FOTOCHROME, INC. and Frank Nadaline, Jr., Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 18, 1962.

D. M. Hannigan, New York City, for defendants-appellants.

I. R. Kass, New York City, for plaintiffs-respondents.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and EAGER, JJ.

PER CURIAM.

Order entered July 2, 1962, denying defendants' motion to dismiss several of the causes of action in the complaint under rules 103 and 106 of the Rules of Civil Practice, unanimously modified, on the law, with $20 costs and disbursements to defendants, to the extent of dismissing the fourth, fifth, and sixth causes of action, and, in the exercise of discretion, with leave to plaintiffs to repealed all dismissed causes of action within twenty days of the service of the order herein, with notice of entry thereof. The causes of action dismissed are deficient for failure to allege special damages. Generally, when causes of action are pleaded in tort for intentional harms falling outside the categories of the 'conventional' or 'traditional' torts, special damages must be alleged and subsequently proven. Liability depends upon the causing of actual damages which are not presumed from the intention or the overt acts effecting the intention (see Penn-Ohio Steel Corporation v. Allis-Chalmers Mfg. Co., 7 A.D.2d 441, 444-445, 184 N.Y.S.2d 58, 60-62; cf. Restatement, Torts, § 912, incl. Comments). In the fifth cause of action, the allegation of discharged without more is not a sufficient specification of actual damages (Gersh v. Kaspar & Esh, 11 A.D.2d 1005, 206 N.Y.S.2d 510; cf. Hartmann v. Winchell, 296 N.Y. 296, 298, 73 N.E.2d 30, 31, 171 A.L.R. 759). Special damages must be alleged with sufficient particularity to identify actual losses and related causally to the allegedly tortious acts (13 N.Y.Jur., Damages, §§ 12-13; Clark, N.Y.Law of Damages, §§ 3, 760; 2 Greenleaf, Evidence [16th ed.] § 254). The fourth cause of action is additionally insufficient. It alleges merely that defendants said they did certain harmful acts; this is not equivalent to alleging that defendants, in fact, did the things they said they had. The mental injuries asserted in the sixth cause of action are insufficiently alleged. The rules demark the recoverability for such injuries especially when it is not alleged that such mental injuries were intended and...