N.Y. has no defamation jurisdiction on out-of-state blog post

New York courts do not have jurisdiction to hear a lawsuit over allegedly defamatory online statements about a rescue group's treatment of dogs that were written in Vermont by another dog welfare group, the New York Court of Appeals ruled last week.

Interpreting the state's long-arm statute, which allows courts in New York to have jurisdiction over out-of-state defendants, the court ruled that the defendants, the American Working Collie Association and its president Jean Levitt, had not engaged in such "purposeful activities" in New York to subject them to that state's jurisdiction.

Martin McGuinness, who represents the plaintiff in the case, believes that the court did not give sufficient weight to the AWCA's actions in New York. He says that Levitt offered the assistance of the organization for a period of several months, and AWCA volunteers spent a number of weekends working with the dogs.

Jonathan Bernstein, who represents the AWCA, did not reply to an email request for comment.

In October 2007, more than 20 mistreated dogs — collies and dachshunds — were placed with the Society for the Prevention of Cruelty to Animals of Upstate New York following their rescue from a residence in New York, according to the opinion. Levitt, while in Vermont, contacted the SPCA to offer her organization's assistance with the dogs. The AWCA sent a $1,000 donation to the New York animal rescue group, the court wrote.

Levitt again called the SPCA to inform them that the AWCA had purchased collars and leashes for the dogs. She delivered them in November 2007, taking a brief tour of the facility and making a personal donation to help pay for veterinary care of the dogs. Levitt called the SPCA a final time later that month, discussing care of one of the dogs, and visited once more in January 2008, for about an hour and a half, to check up on the dogs, according to the opinion.

That month, Levitt wrote about the conditions and treatment of the collies for the AWCA's website. Those postings, which McGuinness said stated falsely that the dogs were living in unsanitary conditions, were given insufficient exercise, and were generally mistreated, were the basis of the SPCA's defamation action filed in 2009.

Under New York law, an out-of-state defendant can normally be sued in New York if they committed a tort outside the state that caused injury in the state. However, the court wrote, there is an express exception for defamation causes of action in order to "prevent[] disproportionate restrictions on freedom of expression."

Importantly, that exception does not protect a defendant who has engaged in "purposeful activities" within New York that create "some articulable nexus between the business transacted and the cause of action sued upon," according to the opinion.

McGuinness believes that the court carried over the defamation exception present under one part of the statute to the provision he and his client asserted for jurisdiction, which does not have a defamation exception.

The court found that the cash and leash donations, three phone calls and two visits by Levitt — visits "totaling less than three hours" — were insufficient contacts to subject her to New York jurisdiction.

Judge Eugene Pigott dissented, arguing that there was a "substantial relationship" between Levitt's actions in the state and the cause of action, thus satisfying the statute.

The SPCA could refile the case in Vermont. They are considering their options moving forward, McGuinness said.