Plaintiff sought damages after defendant admittedly took every copy of plaintiff's catalog from its distribution box located on a street corner in defendant's neighborhood and threw them in the garbage because, in his view, they contributed to litter. The First Department dismissed the complaint, in Learning Annex v. Gittleman, which was decided on February 5, 2008.

The court found that plaintiff's cause of action for tortious interference with prospective business relations was not viable since plaintiff did not identify any specific customers it would have obtained but for defendant's actions. The conversion cause of action failed because plaintiff admits that the catalogs are free for the taking and anyone can take as many as they want and so plaintiff cannot demonstrate a superior possessory right to them. The prima facie tort cause of action was dismissed because the evidence demonstrated that no reasonable jury could conclude that defendant was motivated solely by "disinterested malevolence," and because plaintiff failed to sufficiently establish that it had sustained special damages.