You get them on your doorstep all the time – advertising fliers. I personally like them; I like to get that menu from the local Chinese restaurant. You never know when you might want to order take out. But others hate them finding them a nuisance and contributing to litter and the cutting down of trees. Can you commence a lawsuit for trespass against the distributor of such fliers? How about a class action?
Last week in Leyse v Domino’s Pizza LLC, 2008 NY Slip Op 01798, the First Department dismissed such an action. The plaintiff attempted to commence a class action against Domino’s Pizza seeking an injunction and a judgment declaring that Domino’s trespassed on the plaintiff’s property by slipping an advertising flier under the door to the plaintiff’s apartment without the plaintiff’s permission. The plaintiff had not given prior notice to Domino’s that he objected to the delivery of the flier. In upholding the dismissal of the action, the First Department stated that such prior notice by the plaintiff to Domino’s that he objected to delivery of the flier was required by Domino’s constitutional right of free speech. In addition, the Court was concerned about a floodgate of litigation by apartment dwellers suing distributors of restaurant fliers. The Court, however, did not find that the action was frivolous.
So the next time you get that menu slipped under your door don’t run to the court house. Instead, order in and watch a good movie or something.