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Spca of Upstate New York, Inc., et al v. American Working Collie Association et al

February 9, 2012


The opinion of the court was delivered by: Lippman, Chief Judge:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The question presented in this defamation action is whether plaintiffs established personal jurisdiction over the out-of-state defendants under CPLR 302 (a)(1), New York's long- arm statute. We find that they did not.

Plaintiff SPCA of Upstate New York is a New York corporation and plaintiff Cathy Cloutier is its executive director. Defendant American Working Collie Association (AWCA) is an Ohio not-for-profit corporation and its president, defendant Jean Levitt, is a Vermont resident. The AWCA is a volunteer-based club that is devoted to promoting the welfare and protection of collies. The organization has members throughout the United States -- including 13 in New York at the time of the events herein -- but has neither an office nor employees in New York. The AWCA maintains a website (, generally containing photographs and anecdotes about particular collies, as well as messages from the AWCA's president providing collie-related information of interest to the group's members. This action arises out of allegedly defamatory statements published by defendants on the AWCA website.

On October 17, 2007, 23 mistreated dogs (collies and dachshunds) were rescued from a residence in Fort Ann, New York and placed with plaintiff SPCA in its Queensbury, New York facility. Soon thereafter, while in Vermont, defendant Levitt telephoned plaintiff Cloutier to offer the AWCA's assistance with the subject animals. Subsequently, the AWCA sent the SPCA a donation in the amount of $1,000. Levitt placed a second telephone call from Vermont to advise Cloutier that the AWCA had purchased collars and leashes for the dogs and to make arrangements to deliver those materials.

Levitt visited the SPCA facility on November 7, 2007 for less than one hour, at which time Levitt delivered the leashes and collars and toured the facility. Levitt also wrote a personal check to the SPCA to cover the costs of certain veterinary care. Later that month, Levitt telephoned Cloutier from Vermont for the third and final time and, during that call, they discussed the appropriate care for one of the collies. In addition, on several weekends, volunteers who were affiliated with AWCA assisted in providing care for the dogs. Levitt again visited the SPCA facility on January 5, 2008, for about an hour and a half, to check on the collies.

After Levitt's return to Vermont, she generated a series of writings addressing the condition of the collies and the treatment being provided by the SPCA. These writings were posted to the AWCA website periodically, beginning January 13, 2008. Based on statements contained in the writings, plaintiffs commenced this defamation action in January 2009. Defendants answered, asserting as relevant here, the affirmative defense of lack of personal jurisdiction. Supreme Court denied defendants' motion to dismiss, finding that personal jurisdiction had been obtained over the defendants under CPLR 302 (a)(1) because Levitt purposefully availed herself of this State's benefits and protections through her trips to New York and that there was a substantial relationship between her activities here and the allegedly defamatory statements.

The Appellate Division reversed, granted defendants' motion and dismissed the complaint (74 AD3d 1464 [3d Dept 2010]). The Court determined that, given New York's "narrow approach" to long-arm jurisdiction where defamation cases are concerned, defendants' contacts with the state were insufficient to support a finding of personal jurisdiction. This Court granted plaintiffs leave to appeal (15 NY3d 716), and we now affirm.

CPLR 302 outlines acts that can form the basis for obtaining personal jurisdiction over non-domiciliaries. Long arm jurisdiction can be premised on the commission of a tortious act -- perpetrated either within the state or outside the state, causing injury within the state -- but provides an express statutory exception for "cause[s] of action for defamation of character arising from the act" (CPLR 302 [a][2], [3]). Although defamation claims therefore cannot form the basis for "tortious act" jurisdiction, such claims may proceed against nondomiciliaries who transact business within the state and thereby satisfy the requirements of CPLR 302 (a)(1). Defamation claims are accorded separate treatment to reflect the state's policy of preventing disproportionate restrictions on freedom of expression -- though, "[w]here purposeful transactions of business have taken place in New York, it may not be said that subjecting the defendant to this State's jurisdiction is an 'unnecessary inhibition on freedom of speech or the press'" (Legros v Irving, 38 AD2d 53, 55-56 [1st Dept 1971], lv dismissed 30 NY2d 653 [1972], quoting Weinstein-Korn-Miller, NY Civ Prac ¶ 302.11 [vol 1]).

In order to demonstrate that an individual is transacting business within the meaning of CPLR 302 (a)(1), "there must have been some 'purposeful activities' within the State that would justify bringing the nondomiciliary defendant before the New York courts" (McGowan v Smith, 52 NY2d 268, 271 [1981]). Moreover, there must be "some articulable nexus between the business transacted and the cause of action sued upon" (McGowan, 52 NY2d at 272). Phrased differently, there must be "a 'substantial relationship' between [the purposeful] activities and the transaction out of which the cause of action arose" (Talbot v Johnson Newspaper Corp., 71 NY2d 827, 829 [1988]; see also Johnson v Ward, 4 NY3d 516, 519 [2005]).

When determining whether the necessary substantial relationship exists between a defendant's purposeful activities and the transaction giving rise to the defamation cause of action, we have considered whether the relationship between the activities and the allegedly offending statement is too diluted (see Talbot, 71 NY2d at 829). Certain types of conduct will plainly satisfy the required nexus (see e.g. Legros, 38 AD2d at 56 [where a book containing allegedly defamatory statements was researched and printed in New York and where the publishing contract was negotiated and executed in this state, the cause of action was deemed to arise out of the transaction]; Montgomery v Minarcin, 263 AD2d 665, 667-668 [3d Dept 1999] [an allegedly defamatory television news report that was researched (over a six-week period), written, produced and broadcast in New York was sufficient to establish the transaction of business within the state]). To the contrary, where the contacts are more circumscribed and not directly related to the defamatory statement, defendants have prevailed (see e.g. Talbot, 71 NY2d at 829 [defendant daughter's attendance at a New York college over two years prior to the allegedly defamatory statements made by her defendant father, relating a description of certain conduct observed by the daughter while a student in New York, was insufficient to establish the required nexus between any purposeful activities in this State and the cause of action at issue]; Copp v Ramirez, 62 AD3d 23 [1st Dept 2009], lv denied 12 NY3d 711 [2009], [no personal jurisdiction over nondomiciliaries who made allegedly defamatory statements in New Mexico to New York reporters from NBC's Dateline program, three years after each spent 60 hours or less at Ground Zero for purposes of producing a potential documentary]).

Here, defendants' activities in New York were quite limited. Levitt's three phone calls and two short visits --totaling less than three hours -- in addition to the donation of cash and leashes, do not constitute purposeful activities related to the asserted cause of action that would justify bringing her before the New York courts. Moreover, it is of importance that the statements were not written in or directed to New York. While they were posted on a medium that was accessible in this State, the statements were equally accessible in any other jurisdiction.

Further, there is no substantial relationship between the allegedly defamatory statements and defendants' New York activities. Levitt did not visit New York in order to conduct research, gather information or otherwise generate material to publish on the group's website. Instead, defendants engaged in limited activity within the state in order to help provide financial and medical assistance for the dogs. The alleged mistreatment was observed during the course of those two brief visits but written about after Levitt returned to Vermont. The AWCA neither placed the dogs with plaintiffs in New York nor complained of its volunteers' treatment by plaintiffs, either one of which might well entail a sufficiently substantial relationship between the allegedly defamatory statements and defendants' New York activities as to warrant a finding of long-arm jurisdiction. The connection here is too tangential to support the exercise of personal jurisdiction over defendants.

As the Second Circuit has observed, "New York courts construe 'transacts any business within the state' more narrowly in defamation cases than they do in the context of other sorts of litigation" (Best Van Lines, Inc. v Walker, 490 F3d 239, 248 [2d Cir 2007]). Through CPLR 302, the Legislature has manifested its intention to treat the tort of defamation differently from other causes of action and we believe that, as a result, particular care must be taken to make certain that nondomiciliaries are not haled into court in a manner that potentially chills free speech without an appropriate ...

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