Plaintiffs appeal from orders of the Supreme Court, New York County (Richard F. Braun, J.), entered on or about October 2 and 5, 2007, which dismissed the complaint against defendants Grace, Miller and Linthicum; and from separate order, same court and Justice, also entered on or about October 5, 2007, dismissing the complaint against defendants Ramirez, Hockenberry, Phillips and NBC-Universal.
The opinion of the court was delivered by: Renwick, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David Friedman, J.P., John W. Sweeny, Jr., James M. McGuire, Dianne T. Renwick, Helen E. Freedman, JJ.
Plaintiff Copp commenced this defamation action after his tale of courage and sacrifice at Ground Zero was called into question by eyewitnesses to his activities on the rescue site, but not before his tale convinced the September 11 Victims' Compensation Fund to award him $650,000. Copp, an out-of-state plaintiff, sued out-of-state defendants Miller, Grace and Linthicum (the last of whom is a reporter for the Albuquerque Journal) for allegedly making defamatory statements in New Mexico to reporters from New York's NBC-Dateline program concerning events they observed during their brief visit to Ground Zero three years earlier. Plaintiffs also sued NBC-Universal and its employees (Ramirez, Hockenberry and Phillips) involved in the Dateline report (the NBC defendants). The claims against the out-of-state defendants must be dismissed because none of them is subject to personal jurisdiction in New York with regard to statements made against Copp in New Mexico. Likewise, the appeal as to the NBC defendants must be dismissed because plaintiffs failed to properly perfect their appeal against them.
Doug Copp founded and ran the American Rescue Team International (ARTI), a California Corporation which purportedly engaged in missions to recover humans and human remains at disaster sites. Two days after the September 11, 2001 terrorist attacks, Copp flew to New York on a corporate jet owned by the Albuquerque Journal and piloted by the Journal's publisher. The office of a New Mexico congressman had obtained special federal clearance for the flight based upon Copp's credentials as an experienced worldwide disaster rescuer. At Ground Zero, Copp intended to use his "Copp Casualty Locator" (CCL), a special device he had invented to locate human remains.
New Mexico residents Michael L. Miller, John M. Grace, and Leslie Linthicum accompanied Copp on the plane from New Mexico to Ground Zero. Miller, who owned and operated a film production company in New Mexico, reportedly accompanied Copp on this trip to explore the possibility of producing a documentary about Copp's life as a rescuer. Miller visited Ground Zero on four occasions for a total of 12 hours; he stayed in New York for about 60 hours. Grace, a freelance director of photography and a cameraman, with his principal place of business in New Mexico, reportedly visited Ground Zero with Copp for less than four hours; he stayed in New York for no more than 36 hours. Linthicum accompanied Copp to Ground Zero as a reporter for the Albuquerque Journal; she stayed in New York about 48 hours.
During his two weeks at Ground Zero, Copp did not recover any human remains; however, he claims that his team was able to recover remains at the Staten Island landfill. He also claims that as a result of his exposure to the "toxic soup" that accumulated at Ground Zero, he sustained life-threatening injuries. The 9/11 Victims' Compensation Fund awarded him $650,000 for medical expenses and lost wages.
From July 11 to 18, 2004, the Albuquerque Journal published a series of articles written by Linthicum, casting doubt on whether Copp was entitled to the $650,000 he received from the 9/11 Fund. These articles also reported that the Department of Justice had launched an investigation into the legitimacy of Copp's petition to the 9/11 Fund. Search and rescue experts around the world who were interviewed also questioned Copp's claims about his exploits. On July 15, 2005, NBC-Universal, a New York-based corporation, broadcast on its Dateline news magazine program a story addressing the controversy that led to the Department of Justice's investigation and the questions raised by the Journal articles*fn1. Miller, Grace and Linthicum were interviewed and filmed in New Mexico for the Dateline report; segments of their interviews were broadcast on Dateline. The last segment of the Dateline report addressed Copp's responses to the allegations that he had defrauded the 9/11 Fund.*fn2
In July 2006, one year after the NBC report aired, Copp and ARTI commenced this action against the NBC defendants and the New Mexico defendants. In the complaint, plaintiffs aver claims of defamation, intentional infliction of emotional distress and fraud, all stemming from the alleged defamatory statements aired on Dateline. Subsequently, Supreme Court granted defendants' respective motions dismissing the complaint against them. First, the court found that plaintiffs failed to establish the falsity of the factual assertions upon which their cause of action for defamation is based. With respect to the causes of action for intentional infliction of emotional distress and fraud, the court found that these causes of action "are largely duplicative" of the defamation claim and improperly seek only punitive damages. Furthermore, the court found that the cause of action for intentional infliction of emotional distress "does not come close to sufficiently pleading the elements of such a claim," and that the fraud cause of action "is not pled with the specificity required by CPLR 3016(b)." Lastly, the court found that it had no personal jurisdiction over the out-of-state defendants Linthicum, Grace and Miller because "the events relied upon against those defendants for the alleged defamation occurred outside of New York State." Plaintiffs have appealed the dismissal of the action against all defendants, and we affirm.
As an initial matter, we examine the NBC defendants' argument on appeal that plaintiffs have not properly appealed the Supreme Court order concerning them. Supreme Court issued three orders in this action relevant to this appeal. The first, dated October 2, 2007, granted the joint motion of defendants Grace and Miller to dismiss the complaint against them. The second, dated three days later, granted the motion of defendant Linthicum to dismiss the complaint against her. The third, also dated October 5, 2007, granted the joint motion of the NBC defendants to dismiss the complaint against them. Supreme Court issued an opinion on October 9, 2007, explaining why it had granted the motions. Plaintiffs filed and served a notice of appeal "from the two Short Form Orders and Opinion," dated October 2, 5, and 9 that had dismissed the Complaint in its entirety as to all defendants." The ...