| SPCA of Upstate N.Y., Inc. v American Working CollieAssn. |
| 2010 NY Slip Op 04697 [74 AD3d 1464] |
| June 3, 2010 |
| Appellate Division, Third Department |
| SPCA of Upstate New York, Inc., et al., Respondents, v AmericanWorking Collie Association et al., Appellants. |
—[*1] Stanclift Law Firm, P.C., Glens Falls (Martin McGuinness of counsel), forrespondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered October 9,2009 in Warren County, which denied defendants' motion for summary judgment dismissing thecomplaint.
The primary issue before us is whether defendants are subject to New York's long-armjurisdiction in this defamation action. In October 2007, State Police removed 23 mistreateddogs—collie and dachshund breeds—from a residence in the Town of Fort Ann,Warren County. The dogs were placed with plaintiff SPCA of Upstate New York, Inc.(hereinafter SPCA) in the Town of Queensbury, Warren County. Shortly after the dogs wereplaced with SPCA, defendant Jean Levitt, a Vermont resident and president of defendantAmerican Working Collie Association (hereinafter AWCA), an Ohio not-for-profit corporation,contacted via telephone plaintiff Cathy Cloutier, executive director of SPCA and a resident ofQueensbury. Levitt offered assistance to SPCA and a $1,000 donation was made by AWCA toSPCA to help in the care of the dogs. Levitt made a second phone call to Cloutier reporting thatcollars and leashes purchased by AWCA had arrived and she made arrangements to deliver suchitems.
On November 7, 2007, Levitt drove from Vermont to SPCA where, in a visit lasting lessthan one hour, she delivered the collars and leashes, toured the facility and wrote a personal[*2]check to cover veterinary costs incurred by SPCA in caringfor some of the dogs. Near the end of November 2007, Levitt placed a third call to Cloutier inwhich they discussed and disagreed about the proper care for one particular older collie. Levittmade a second, and final, visit to SPCA on January 5, 2008 to check on the condition of the dogsand she stayed about an hour and a half. Upon returning to Vermont, Levitt wrote about herobservations of the dogs. On or after January 13, 2008, Levitt posted her writings on AWCA'sWeb site.
Plaintiffs commenced this action in January 2009 alleging that they were defamed by thewritings posted by Levitt on AWCA's Web site. Defendants served an answer and subsequentlymade a motion for dismissal of the complaint for lack of personal jurisdiction. Supreme Courtdenied the motion finding that plaintiffs had established long-arm jurisdiction pursuant to CPLR302 (a) (1). Defendants appeal.
Jurisdiction over a nondomiciliary may be predicated on CPLR 302 (a) (1) "where (i) adefendant transacted business within the state and (ii) the cause of action arose from thattransaction of business" (Johnson vWard, 4 NY3d 516, 519 [2005]). Once a nondomiciliary asserts the jurisdictional issue,the plaintiff then has the burden of showing adequate contacts to sustain long-arm jurisdiction(see Stardust Dance Prods., Ltd. vCruise Groups Intl., Inc., 63 AD3d 1262, 1264 [2009]; Spectra Prods. v Indian Riv.Citrus Specialties, 144 AD2d 832, 833 [1988]). Determining whether a defendant hastransacted business within the meaning of the long-arm statute requires consideration of thetotality of the circumstances (see Wimmer Can. v Abele Tractor & Equip. Co., 299AD2d 47, 49-50 [2002], lv denied 99 NY2d 507 [2003]; see also Farkas v Farkas, 36 AD3d852, 853 [2007]; Montgomery v Minarcin, 263 AD2d 665, 668 [1999]). The SecondCircuit has aptly observed that "New York courts construe 'transacts any business within thestate' 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 [2007]; see Kim v Dvorak,230 AD2d 286, 290 [1997]; Legros v Irving, 38 AD2d 53, 55-56 [1971], appealdismissed 30 NY2d 653 [1972]). Indeed, the long-arm statute reveals the special concern asto defamation cases (see CPLR 302 [a] [2], [3]); a concern grounded in "an intent toavoid unnecessary inhibitions on freedom of speech or the press" (Kim v Dvorak, 230AD2d at 290 [internal quotation marks and citations omitted]).
Here, Levitt made two short visits totaling less than three hours to New York as part of heroffer on behalf of herself and AWCA to aid in the care of the dogs. During her visits, shedonated goods and money. Further, volunteers affiliated with AWCA offered and providedassistance in caring for the dogs on several weekends. Levitt's three phone calls were aimed atproviding aid and inquiring about the dogs. There is no evidence that any of the contacts withNew York made by Levitt and AWCA garnered funds, yielded members or generated publicityfor AWCA. From the outset, the purpose of the contact was to help with a difficult situation thathad developed suddenly regarding a large number of mistreated dogs. AWCA is undisputedly anot-for-profit corporation with no offices in New York and only about a dozen members in thisstate. The comments about which plaintiffs complain were not made in this state, but were madein Vermont after defendants' involvement with the dogs had ostensibly ended. In addition, theywere placed on a Web site for AWCA members (who are located throughout the country) withno effort to direct the comments toward a New York audience.
The contacts present in this case are not as significant as the few cases finding long-armjurisdiction when defamation was asserted (see e.g. Montgomery v Minarcin, 263 AD2dat 667 [allegedly defamatory newscasts were researched, written, produced, reported andbroadcast in [*3]this state]; Sovik v Healing Network,244 AD2d 985, 987 [1997] [the defendants drafted and either distributed or authorizeddistribution in New York of allegedly defamatory letter, and letter used to solicit funds];Legros v Irving, 38 AD2d at 56 [the defendant's allegedly defamatory book wasresearched in New York, the contract was negotiated and executed in this state, and it waspublished here]). Although defendants' contacts could support long-arm jurisdiction for causes ofaction other than defamation and the issue here is a close one, we are unpersuaded that extendingjurisdiction on these facts would be consistent with this state's narrow approach to long-armjurisdiction in defamation cases (see e.g. Talbot v Johnson Newspaper Corp., 71 NY2d827, 829 [1988]; Copp v Ramirez,62 AD3d 23, 28-30 [2009], lv denied 12 NY3d 711 [2009]; Kim v Dvorak,230 AD2d at 290-291; Best Van Lines, Inc. v Walker, 490 F3d at 244-251; Nardiellov Allen, 2007 WL 4119182, *3-4, 2007 US Dist Lexis 85080, *7-12 [ND NY 2007]).
Plaintiffs' alternative argument of general jurisdiction under CPLR 301 has been consideredand found unavailing (see generallyArroyo v Mountain School, 68 AD3d 603, 603-604 [2009]).
Cardona, P.J., Mercure, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, with costs, motion granted, and complaint dismissed.