LEYSE v. DOMINO PIZZA LLC (2008)

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 plaintiff's property by slipping an advertising flier under the door to plaintiff's apartment without plaintiff's 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. United States Post Off. Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 [1970];  Tillman v. Distribution Sys. of Am., 224 A.D.2d 79, 648 N.Y.S.2d 630 [1996], lv. denied 89 N.Y.2d 814, 659 N.Y.S.2d 855, 681 N.E.2d 1302 [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, 670 N.Y.S.2d 668 [1997] ), or a statute that required notice (Rowan, supra ).   Nor are part 130 costs and sanctions warranted by plaintiff's 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 plaintiff's counsel was not required to accept defendant's assertion at face value.   We have considered plaintiff's other contentions and find them unavailing.