22 A.D.2d 791 | N.Y. App. Div. | 1964
In an action to recover damages arising out of plaintiff’s participation in a television program known as the “$64,000 Challenge”, certain of the defendants appeal from so much of an Order of the Supreme Court, Nassau County, dated August 31, 1961, as denied said defendants’ motions, pursuant to rules 106 (subd. 4), 102 and 103 of the former Rules of Civil Practice, to dismiss the complaint and each of the 10 causes of action therein. Order modified: (1) by adding to its decretal paragraphs a provision striking out the fourth cause of action, with leave to replead said cause of action; and (2) by deleting its third decretal paragraph granting leave to replead the seventh, ninth and tenth causes of action. As so modified, Order, insofar as appealed from, affirmed, without costs. Plaintiff’s time to serve the amended complaint is extended until 30 days after entry of the order hereon. The complaint, purporting to allege 10 causes of action, is based, in substance, upon the claim that plaintiff was damaged in appearing as a contestant on the television program known as the “$64,000 Challenge ” because, without his knowledge, the program was conducted fraudulently and dishonestly. Appellants moved to dismiss all the causes of action; and the disposition at Special Term was as follows: (1) the motion was granted, without leave to replead, as to the fifth, sixth and eighth causes of action, as to which plaintiff has not appealed; (2) the motion was denied with respect to the third and fourth causes of action; (3) it was granted with respect to the first and second causes of action, with leave to replead them as a single cause; and (4) it was granted with respect to the seventh, ninth and tenth causes of action, with leave to replead them as one Cause. Appellants contend that all the causes of action Should have been dismissed, without leave to replead any of them. The Special Term dismissed the first and second causes of action, holding that the first cause sufficiently alleged an action in libel, but that the second cause merely alleged an aggravation of the single defamation pleaded; and directed that the two Causes be repleaded as one. Wé are of the Opinion that those two causes (the first and second) were properly dismissed, not Only for the reason stated, but because they failed to allege special damage. If plaintiff was defamed, it was hot by the television broadcast but because of extrinsic facts concerning the manner in which the program allegedly was “rigged”; and, under such circumstances, an