66 A.D.2d 718 | N.Y. App. Div. | 1978
Order, Supreme Court, New York County, entered February 9, 1978, dismissing the complaint for failure to state a cause of action, unanimously reversed, on the law, and the complaint reinstated, with $75 costs and disbursements of this appeal to appellant. The ground for dismissal assigned at Special Term is that "it is impossible for the plaintiff to prove the essential element of damages” resulting from defendant-respondent’s failure to print the advertisement accepted from plaintiff-appellant. The activities of defendant in receiving the advertisement, in assuring timely insertion in the newspaper, in attempting to secure a reorder, and in the very belated act of explanation for failure to print the advertisement all add up to a contract that was deliberately breached. If breach is proven, a remedy is available even though provable damage may actually be no more than nominal. "A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain.” (Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205, 209.) Nor should the second cause, seeking exemplary damage, have been dismissed. The allegation is that defendant deliberately failed to run the advertisement because its credit records reflected adversely on plaintiff. That information was erroneous, and defendant failed to advise plaintiff of its reason in time to be corrected and to have the advertisement run. The relief sought, though erroneously stated as a separate cause, should be deemed part of the prayer for damages. (Gill v Montgomery Ward & Co., 14 AD2d 987.) Concur—Kupferman, J. P., Silverman, Fein and Markewich, JJ.
