Shiffman v. Empire Blue Cross & Blue Shield

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about May 6, 1998, which, to the extent appealed from as limited by appellants’ brief, granted plaintiffs motion to dismiss defendants’ first, third, fourth and fifth affirmative defenses and denied defendants’ cross motion to dismiss the complaint for failure to state a cause of action, unanimously modified, on the law, the cross motion granted to the extent of dismissing the claim for punitive damages, and otherwise affirmed, without costs.

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 AD2d 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 alléged 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 NY2d 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.