Leyse v. Domino's Pizza LLC

360 Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered March 15, 2007, which, in a purported class action seeking an injunction and a judgment declaring that defendant food distributor trespassed on plaintiffs property by slipping an advertising flier under the door to plaintiffs apartment without plaintiffs permission, granted defendant’s cross motion to dismiss the complaint and for 22 NYCRR part 130 costs and sanctions, unanimously modified, on the facts, to vacate the award of costs and sanctions, and otherwise affirmed, without costs. The action was properly dismissed in the absence of prior notice by plaintiff to defendant that he objected to delivery of the flier. Such notice was required by defendant’s constitutional right of free speech (cf. Rowan v Post Office Dept., 397 US 728 [1970]; Tillman v Distribution Sys. of Am., 224 AD2d 79 [1996], lv denied 89 NY2d 814 [1997]). In addition, the specter of numerous apartment dwellers suing distributors of restaurant fliers warrants a floodgate. The action, however, is not frivolous. The cases cited by defendant and the motion court do not explicitly rule that prior notice is a constitutional prerequisite to a trespass action brought to protect the privacy of a home against these sorts of intrusions; rather, these cases involved either notice that happened to have been given (id.; Miller v Distribution Sys. of Am., 175 Misc 2d 513 [1997]), or a statute that required notice (Rowan, supra). Nor are part 130 costs and sanctions warranted by plaintiffs continued maintenance of the action after being advised that the offending flier came not from defendant but a franchisee of defendant. There has been no disclosure, and plaintiffs counsel was not required to accept defendant’s assertion at face value. We have considered plaintiffs other contentions and find them unavailing. Concur— Lippman, P.J., Friedman, Williams and Acosta, JJ. [See 2007 NY Slip Op 30186(U).]