The task of construing long arm jurisdiction under CPLR §302 (a)(1)-(4) is enough to send most practitioners to the nearest vending machine for chocolate and soda. The task becomes more mind-numbing where the analysis involves a claim for defamation. In such circumstances, the out-of-state utterer receives an added layer of protection as defamation of character is expressly excluded as a basis for long arm “tortious act” jurisdiction under §302 (a)(2) and (a)(3).
At issue in SPCA of Upstate New York, Inc. et al v. American Working Collie Association et al. (Court of Appeals Feb. 9), were allegedly defamatory statements published by the American Working Collie Association and its president, both residents of Vermont, on the AWCA’s website. The alleged defamatory statements related to the care, or lack thereof, provided to 23 mistreated dogs (collies and dachshunds) placed with the SPCA of Upstate New York after it staged a rescue mission.
The court was presented with an opportunity to tackle the vagaries of Internet activity as a basis for long arm jurisdiction. Unfortunately, the court punted and the 4 to 3 decision fails to provide a reliable level of predictability with respect to long arm jurisdiction and defamation claims based upon Internet postings.
The SPCA sued after defendants utilized the AWCA website to post a series of writings that criticized the SPCA in relationship to the post-rescue condition of the collies and the treatment afforded by the SPCA. The defendants moved to dismiss the action on the basis of lack of personal jurisdiction. The trial court denied the motion, and the denial was overturned by the Appellate Division (74 AD3d 1464 [3d Dept 2010]). The Court of Appeals affirmed the decision of the Appellate Division.
The decision turns on a very particular point, namely that the defendants’ “contacts” with New York were insufficient to support a defamation claim under CPLR § 302 (a)(1), relating to the transaction of business and/or (a)(2) or (a)(3), relating to tortious acts. Notably, CPLR §302 (a)(2) and (a)(3) both limit long arm-tortious act jurisdiction with respect to defamation claims; however the defamation limitation is not expressly stated in subsection (a)(1) relating to activity involving the transaction of business.
In finding that the AWCA and its president were not subject to long arm jurisdiction, the court acknowledged and then discounted six contact events, all of which occurred precisely because the AWCA elected to weigh in on and actively participate in the SPCA’s post rescue activities.
To even the casual observer, the “contact” events appeared to be significant as they included (1) a telephone solicitation by the AWCA to offer its assistance with the collies; (2) further telephone contact to advise that the AWCA had purchased collars and leashes for the dogs and to make arrangements for delivery of the equipment; (3) a visit by the AWCA’s president, Jean Levitt, during which she delivered the collars and leashes and a $1,000 check as a AWCA donation and toured the facility; (4) Levitt’s personal contribution of cash to cover certain veterinary care; (5) another telephone call to discuss appropriate care for one of the collies; and (6) a second visit by Jean Levitt to check on the collies.
In addition, the AWCA, over the course of eight weekends, dispatched members and volunteers to the SPCA’s New York facility to assist in exercising the dogs and cleaning crates. The alleged defamatory statements were made on the basis of observations gained as a result of the contacts.
The majority opined that the foregoing contacts did not constitute “purposeful activity” that bore a substantial relationship to the critical Internet postings. Rather, the majority considered the contact events as “three phone calls and two short visits — totaling less than three hours — in addition to the donation of cash and leashes” as acts that did not constitute purposeful activities.
Equally important were the court’s observations with respect to the AWCA’s decision to post allegedly defamatory statements on its website. In this regard, the majority noted as a matter of “importance” that the statements “were not written in or directed to New York” rather the statements “were posted on a medium that was accessible” in New York as well as any other jurisdiction.
Such matters of importance appear to be at odds with the fact that the postings were, by virtue of the Internet, available to New Yorkers and that the alleged defamatory statements concerned activity that took place in New York.
The decision is perhaps most notable because of the dissenting opinion, authored by Justice Pigott. In this regard, the dissent aptly acknowledges the express mission of the AWCA, as the promotion of the well-being of collies, within the context of the contacts made by Levitt and AWCA volunteers. In this context the dissent contends that the facts establish a basis for long arm jurisdiction, even construing CPLR 302(a)(1) more narrowly in defamation cases.
With respect to the Internet postings, the dissent found it significant that the postings occurred one week after Levitt’s second visit to New York and that the alleged defamatory posts addressed the conditions of the rescued dogs in New York and the conditions of the SPCA facility in New York.
At the end of the day, practitioners who were hopeful that the court would provide meaningful guidance with respect to long arm jurisdiction premised on Internet activity are left disappointed. Indeed, the only “winners” are American collie lovers and those who believe that the Internet may be used out of state to publically criticize the conduct of others without the fear of being called to answer for the impacts of less than accurate statements.
Mary Jo S. Korona is a founding partner in the law firm of Leclair Korona Giordano Cole LLP. She concentrates her litigation practice in commercial, employment, municipal and bankruptcy matters in state and federal courts.