Cite as: John Doe v. Jane Doe, 20786/12, NYLJ 1202581502165, at *1 (Sup., KI, Decided December 12, 2012)

Justice Debra Silber

Decided: December 12, 2012

DECISION/ORDER

 

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Upon the foregoing cited papers and for the reasons herein, the Order to Show Cause submitted for signature is denied, with leave to renew under the same index number, on proper papers.

Petitioners, an attorney and his law firm, have moved by Order to Show Cause for pre-action discovery from respondent Ratingz, Inc., a California corporation. Specifically, petitioners seek the Internet Provider (IP) numbers and other identifying information concerning a person or persons who posted allegedly defamatory comments about petitioners on the Ratingz website, which allows users to rate the services of various businesses, including law offices.

An "Affirmation in Further Support of Order to Show Cause" avers that petitioners' papers were first rejected by the Clerk in Part 72 for technical reasons, and

 

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the revised papers, revised to comply with the clerk's comments, were damaged as a result of Hurricane Sandy before they could be submitted. Petitioners' counsel now seeks the Court's indulgence, and requests us to accept and sign the now crispy, water-damaged papers submitted. Recognizing that counsel's office sustained significant hardship from the storm, the court has made every effort to do so. However, the court notes that the papers are difficult to read, and some passages are impossible to read. Further, both petitioner Doe's1 affidavit and counsel's affirmation are missing at least one page each, and it is possible that Exhibit A is also incomplete.

CPLR 3102(c) authorizes the pre-action disclosure, with leave of the court, prior to the commencement of an action to assist the plaintiff in bringing the action. Pre-action disclosure may be allowed so that the identity of prospective defendants against whom a cause of action lies can be determined. See, Petition of VTrader Pro, LLC v. Pires, 24 Misc 3d 828 [Sup Ct NY Co 2009]. Pre-action disclosure may also be allowed so that the precise facts upon which the cause of action lies can be discovered so as to frame the pleadings and to determine what form the cause of action should take. See, Bedrosian v. Gordon, 51 AD2d 962 [2nd Dept 1976]. Pre-action disclosure is allowable only where the party seeking disclosure has demonstrated both a meritorious cause of action and the materiality and necessity of the information sought. Liberty Imports v. Bourguet, 146 AD2d 535 [1st Dept 1989]. A petitioner must show by affidavit the basis of a meritorious cause of action. See, Matter of Peters, 34 AD3d 29 [1st Dept 2006]. A court properly denies a motion for pre-action discovery when petitioner does not show the existence of a meritorious cause of action. Belmont v. Bristol-Myers Squibb Co., 18 AD3d 292 [1st Dept 2005]. The scope of pre-action discovery pursuant to CPLR 3102(c) must be limited to precise issues, and the plaintiff must show by affidavit details

 

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sufficient to enable the court to determine whether the discovery will be proper. See, Application of Dack, 101 Misc. 2d 490 [Sup Ct Monroe Co 1979].

Posting of allegedly defamatory material about a New York resident on a website merely accessible in New York, without more, does not provide a basis for jurisdiction over a non-domiciliary for the purposes of CPLR §302 (a)(1). SPCA of Upstate New York, Inc. v. American Working Collie Association, 74 AD3d 1464 [3rd Dept 2010]. Instead, a nonresident's internet activity must be expressly targeted at or directed to the forum state to establish the minimum contacts necessary to support the exercise of personal jurisdiction. Capitol Records, LLC v. VideoEgg, Inc., 611 F Supp 2d 349 [SDNY 2009]. In Intellect Art Multimedia, Inc. v. Milewski, 24 Misc 3d 1248[A] [Sup Ct NY Co 2009] it was held that plaintiff alleged sufficient facts to show that defendant transacts business in New York through its "Ripoff Report" website, given the high level of interactivity of the website, the undisputed fact that information is freely exchanged between website users, defendant's alleged active role in manipulating user's information and data, and defendant's solicitation of companies and individuals to resolve the complaints levied against them on his "Ripoff Report."

In analyzing personal jurisdiction in the internet context, many New York courts have adopted the "sliding scale of interactivity," formulated in Zippo Manuf. Co. v. Zippo Dot Com, Inc. (952 F Supp 1119, 1125-26 [WD Pa 1997]), pursuant to which websites are classified as (1) interactive [a defendant provides goods and services over the internet or knowingly and repeatedly transmits computer files to customers in other states]; (2) middle ground [permits the exchange of information between users in another state and the defendant], and (3) passive [makes information available to users]. See, also Royalty Network Inc. v. Dishant.com, LLC, 638 F Supp 2d 410 [SD NY 2009]. Thus, it has been held that exercising personal jurisdiction over the owner of an

 

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internet website accessible in New York requires that the site be "highly interactive," and therefore more than "merely present" on the internet. See Citigroup Inc. v. City Holding Co., 97 F Supp 2d 549, 565 [SDNY 2000]. On the other hand, web sites where a user can exchange information with the website host occupy a middle ground, and the exercise of jurisdiction in these cases is determined by examining the level of interactivity and the commercial nature of the exchange of information that occurs on the web site. Best Van Lines, Inc. v. Walker, 490 F3d 239, 251 [2nd Cir 2010]. Where a website falls somewhere in the "middle ground," the jurisdictional inquiry requires closer evaluation of its contacts with New York residents. Royalty Network Inc. v. Dishant.com, LLC, 638 F Supp 2d 410 [SDNY 2009].

Here, as the website at issue allows its users to submit comments and posts the comments about businesses operating in New York, there is no issue that New York courts have jurisdiction over this application for pre-action discovery.

The law in New York governing pre-action discovery is well settled. CPLR 3102(c) allows pre-action disclosure to aid the petitioner in locating the proper party to an action or to preserve information. A court order is required. Matter of Uddin v. New York City Tr. Auth., 27 AD3d 265, 266 [1st Dept 2006]. When a party seeks pre-action disclosure to secure information necessary to frame a complaint or to identify the proper defendant, "courts traditionally require a strong showing that a cause of action exists." (Siegel, 1999 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 3102:5, 2004 Pocket Part, at 147). "A petition for pre-action discovery should only be granted when the petitioner demonstrates that he [or she] has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong." Matter of Uddin v. New York City Tr. Auth. at 266, quoting Holzman v. Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347, 9 [1st Dept 2000]; Matter of

 

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Peters v. Southeby's Inc., 34 AD3d 29, 34 [1st Dept 2006], lv denied 8 NY3d 809 [2007]; Matter of Bliss v. Jaffin, 176 AD2d 106, 108 [1st Dept 1991]; Matter of Stewart v. New York City Transit Authority, 112 AD2d 939 [2nd Dept 1985]. "As a general rule, the adequacy of merit rests within the sound discretion of the court." Matter of Peters v. Southeby's Inc. at 34, quoting Mediavilla v. Gurman, 272 AD2d 146, 148 [1st Dept 2000].

The elements of a cause of action for defamation "are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se." Dillon v. City of New York, 261 AD2d 34, 38 [1st Dept 1999]; Salvatore v. Kumar, 45 AD3d 560, 563, 845 NYS2d 384 [2nd Dept 2007], lv denied 10 NY3d 703 [2008].

Pre-action discovery was held properly denied where a petitioner failed to establish that he had a viable claim for defamation, "as he failed to allege evidentiary facts of malice sufficient to overcome the common interest qualified privilege." Stump v. 209 E. 56th St. Corp., 212 AD2d 410 [1st Dept 1995]. Pre-action discovery pursuant to CPLR 3102(c) was held properly denied where a petitioner failed to present facts that fairly indicated he had a meritorious cause of action for defamation, as the statements were expressions of opinion, and protected by either an absolute or qualified privilege. Matter of Gleich v. Kissinger, 111 AD2d 130 [1st Dept 1985]. Pre-action discovery was denied where a petitioner failed to show that he had a meritorious cause of action for libel, as messages posted on the internet were not statements of fact but personal opinions about petitioner. Admission Consultants, Inc. v. Google, Inc., NYLJ, Dec. 8, 2008, at 18, col 1 [Sup Ct, NY County]. Pre-action discovery was denied where statements by an anonymous blogger were readily identifiable as protected opinion and not reasonably susceptible to a defamatory interpretation. Matter of Greenbaum v

 

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Google, Inc., 18 Misc 3d 185 [Sup Ct NY Co. 2007]. Pre-action discovery was granted and respondent was directed to produce information identifying an anonymous internet user where an e-mail statement may be reasonably interpreted as disparaging petitioner in her profession, so as to constitute libel per se, in that the e-mail was not an expression of pure opinion. Public Relations Socy. of Am., Inc. v. Road Runner High Speed Online, 8 Misc 3d 820 [Sup Ct, NY County 2005].

In Matter of Cohen v. Google, Inc., 25 Misc 3d 945 [Sup Ct NY Co 2009], petitioner was found to be entitled to pre-action disclosure of information as to the identity of an anonymous blogger where she had sufficiently established the merits of her proposed cause of action for defamation against that person or persons, and that the information sought was determined to be material and necessary to identify the potential defendant. Matter of Uddin v. New York City Tr. Auth., supra; Matter of Stewart v. New York City Tr. Auth., supra.

In the instant matter, the issue is that the papers submitted herein may or may not meet the above — described requirements, but they are not complete. On the papers submitted, a substantive conclusion cannot be reached.

The affidavit of petitioner Doe refers to the website in paragraph 7, and then a page is missing. Therefore, the only thing he says about the site is "In the meantime I require the postings to be removed from Ratingz, Inc in order that no further damages are done." Nothing in his affidavit describes the offending posts, nor does it refer to any exhibits thereto. As a rule, "strong affidavits" are an indispensable part of an application for pre-action disclosure. See, Toal v. Staten Island University Hospital, 300 AD2d, 592, 593 [2nd Dept 2002]. Mr. Doe's affidavit does not describe what it is that he is complaining about.

 

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The affirmation of petitioner's counsel refers to the offensive posts in a conclusory fashion, and refers to an "Exhibit A." The affirmation states that a few postings are factually untrue and contain "fraudulent information" pertaining to cases his clients never worked on or untrue assertions about the services his clients provided. He does not specify which posts, by date or author, or any other description, which he alleged are defamatory, or what makes them defamatory. Since the affirmation is missing a page, it may have actually specified the posts at issue, but there is no way of knowing.

There is no indication if Exhibit A is the complete contents of the web page about petitioners or just an excerpt. It is hard to read and seems to be incomplete. It is partially obliterated and thus only partially readable.

In conclusion, the affirmation, affidavit and petition as submitted are not specific enough. The Order to Show Cause asks respondent to "produce the identity or identities, including but not limited to the name, address, telephone number, IP Address and email of the person or persons who posted the reviews on respondent's website" which is over-broad, given that, as petitioner admits, the overwhelming majority of the comments posted are not even arguably defamatory.

Further, even if the papers were complete and made out a case for defamation, it would still be improper for the undersigned to sign the Order to Show Cause as submitted. While the court is sympathetic to the plight of petitioners' counsel as a result of the storm, the papers as submitted are very faded, and will not be legible in the County Clerk's minutes when scanned, or when copied and served on the respondent. The missing pages further compound this problem.

As such, the Order to Show Cause is denied with leave to renew on proper

 

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papers under the same index number, before the judge then presiding in Part 72

The foregoing constitutes the Decision and Order of the Court.

1. Petitioner's name has been changed to John Doe.