|"J. Doe No. 1" v CBS Broadcasting Inc.|
|2005 NY Slip Op 09448 [24 AD3d 215]|
|December 13, 2005|
|Appellate Division, First Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|"J. Doe No. 1" et al., Appellants,|
CBS Broadcasting Inc. et al., Respondents.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered May 13, 2005, which granted defendants' motion to dismiss the complaint seeking declaratory and injunctive relief for alleged trespass to chattels, and denied plaintiffs' cross motion to amend the complaint, unanimously affirmed, with costs.
The action was not properly brought pseudonymously since plaintiffs have not alleged a matter implicating a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings (see e.g. Doe v New York Univ., 6 Misc 3d 866 ). Dismissal of the complaint was additionally warranted by plaintiffs' failure to allege a legally cognizable cause of action. Although plaintiffs seek relief for trespass to chattels, based on either random digit dialing and/or sequential dialing to unlisted and unpublished telephone numbers, they have not alleged harm to the condition, quality or material value of the chattels at issue, i.e., their telephones, and have thus failed to plead an essential element of their purported cause of action (see Kronos, Inc. v AVX Corp., 81 NY2d 90, 95 ). Moreover, "J. Doe No. 2," who is not a subscriber of an unlisted or unpublished telephone number, lacks standing to assert the claim pleaded.
Leave to amend was properly denied since the proposed amendment, in failing to allege harm to a chattel, suffers from the same fatal deficiency as the original claims. Concur—Mazzarelli, J.P., Saxe, Friedman, Sullivan and Williams, JJ.