If you live in any sizable town, you’ve probably seen them on your downtown street corner – those little plastic kiosks that contain free copies of the local magazine, Pennysaver, employment guide, real estate listings, alternative healing directory, the Onion, or the Village Voice. Certainly, if you live in Manhattan you’ve seen that catalogue from the Learning Annex. Well, has the question ever come to your mind – Can I take all of those free copies and chuck them out? The First Department answered that question today in Learning Annex Holdings, LLC v Gittelman, 2008 NY Slip Op 00993.
In that case, one Martin Gittelman removed every copy of the Learning Annex’s catalogue from its magazine/catalogue distribution box located on a street corner in Gittelman’s neighborhood and threw them in the garbage because, in his view, they contributed to litter in the area. The Learning Annex sued for (1) tortious interference with prospective business relations, (2) conversion, and (3) prima facie tort. The First Department upheld the dismissal of all causes of action. The Court stated the tortious interference claim was not viable since the Learning Annex failed to identify any specific customers it would have obtained but for Gittelman’s actions. The conversion cause of action failed because the catalogues were free for the taking and anyone could take as many as they desired and therefore, the Learning Annex could not cannot demonstrate a superior possessory right to the catalogues. And finally, the Court found that the prima facie tort cause of action could not survive because a reasonable jury could not conclude that Gittelman was motivated solely by “disinterested malevolence,” and the Learning Annex failed to sufficiently establish that it sustained special damages.
So, the next time you pass one of those little plastic street corner boxes, take one copy, take five, take as many as you want, and do with them what you will.