Summary
In Shiffman v. Empire Blue Cross and Blue Shield, as here, a learned professional was fraudulently solicited for services.
Summary of this case from Keyzer v. Amerlink, Ltd.Opinion
December 15, 1998
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
In this action for civil trespass, it is undisputed that defendants gained entry to plaintiffs private medical office by having a reporter pose as a potential patient using a false identity and bogus insurance card. We agree with the motion court that defendants' affirmative defenses based upon consent and implied consent to enter the premises were legally insufficient since consent obtained by misrepresentation or fraud is invalid ( see, Restatement [Second] of Torts § 330, comment g; People v. Thompson, 116 A.D.2d 377, 381) and also agree that the affirmative defense premised upon State and Federal constitutional free speech guarantees is without merit as such guarantees confer no privilege for trespass.
While the motion court properly denied defendants' cross motion to dismiss the complaint for failure to state a cause of action based on plaintiffs alleged failure to plead actual damages, plaintiffs claim for punitive damages should be dismissed. Although plaintiff failed to allege any actual damage to his possessory interest by reason of the reporter's unlawful, yet non-disruptive, entry into his private medical office, nominal damage is always presumed from a trespass ( see, Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95; Butler v. Ratner, 173 Misc.2d 783). Punitive damages, however, are not recoverable inasmuch as there is no evidence the complained-of trespass was motivated by malice.
Concur — Lerner, P. J., Williams, Tom and Andrias, JJ.