Platsky v Yahoo! Inc.

[*1] Platsky v Yahoo! Inc. 2017 NY Slip Op 51213(U) Decided on September 22, 2017 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 22, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570433/17

Henry Platsky, Plaintiff-Appellant,

against

Yahoo! Inc., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Adam Silvera, J.), entered March 29, 2017, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Adam Silvera, J.), entered March 29, 2017, affirmed, without costs.

Defendant's motion for summary judgment dismissing the complaint was properly granted. The evidentiary proof submitted by defendant, including plaintiff's deposition transcript, establishes, prima facie, that plaintiff did not sustain any damages as a result of defendant's alleged breach of the Terms of Service governing the underlying email account. "Where a party has failed to come forward with evidence sufficient to demonstrate damages flowing from the breach alleged and relies, instead, on wholly speculative theories of damages, dismissal of the breach of contract claim is in order" (Lexington 360 Assoc. v First Union Natl. Bank of N. Carolina, 234 AD2d 187, 190 [1996]).

To the extent plaintiff seeks to recover damages based on allegations of harassment by defendant, New York does not recognize a common-law cause of action for harassment (see Edelstein v Farber, 27 AD3d 202 [2006]), and the conduct complained of did not give rise to any other cognizable cause of action or basis for tort liability. Plaintiff's reliance upon the definition of second degree harassment contained in Penal Law § 240.26(3) is both unpreserved and entirely misplaced.

In view of our determination, we need not address defendant's alternative grounds for affirmance.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: September 22, 2017