The following papers were considered in connection with Motion Sequence 5 by plaintiff against defendant Bette Frank Leahy for a default judgment against her and Motion Sequence 6, the cross-motion by Leahy for an Order dismissing the within action pursuant to CPLR 3211(8) and 306-b, together with such other and further relief as this Court may deem just and equitable:

PAPERSNUMBERED

Motion Sequence 5 [*2]

Motion/Affirmation/Exhibits A-F1

Motion Sequence 6

Cross-Motion/Affidavit/Affirmation/Exhibits A-C2

Affirmation in Support/Memorandum of Law3

Exhibits A-E4

Exhibits F-S5

Exhibits6

Plaintiff brings this action for libel and breach of duty of confidentiality against the defendants in connection with, among other things, various alleged defamatory statements anonymously posted on the internet.^[FN1]

The motions currently before the Court were orally argued on June 28, 2013.

Now, upon consideration of the above listed papers and the transcript of the June 28, 2013, proceedings, the Court rules as follows.

That aspect of Motion Sequence 5 seeking a default judgment against defendant Bette Frank Leahy ("Leahy") is denied without prejudice to reapplication following the Court's determination of the personal jurisdictional issue raised in Motion Sequence 6.

The question currently before the Court in connection with motion sequence 6 is whether plaintiff has established personal jurisdiction over Leahy, an out-of-state defendant, under CPLR 302(a)(1), New York's long-arm statute, such as to warrant the denial of Leahy's cross-motion to dismiss or, at the very least, such as to direct discovery limited to the jurisdictional issue.

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 non-domiciliaries who transact business within the state and thereby [*3]satisfy the requirements of CPLR 302(a)(1).

(SPCA of Upstate New York, Inc. v. Am. Working Collie Ass'n, supra at 404). The special treatment accorded defamation claims reflects the state's "policy of preventing disproportionate restrictions on freedom of expression", except that

"[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, 327 N.Y.S.2d 371 [1st Dept.1971], lv. dismissed 30 NY2d 653, 331 N.Y.S.2d 673, 282 N.E.2d 626 [1972], quoting Weinstein—Korn—Miller, NY Civ. Prac., vol. 1, ¶ 302.11).

(SPCA of Upstate New York, Inc. v. Am. Working Collie Ass'n, 18 NY3d 400, 404 [2012]). Thus, we look to CPLR 302(a)(1).

A New York court may exercise personal jurisdiction over a nondomiciliary who, either in person or through his or her agent, "transacts any business within the state or contracts anywhere to supply goods or services in the state" (CPLR 302[a][1]; see Stardust Dance Prods., Ltd. v. Cruise Groups Intl., Inc., 63 AD3d 1262, 1263-1264 [2009]). Notably, CPLR 302(a)(1) is a "single act statute" and, therefore, "proof of one transaction in New York is sufficient to invoke jurisdiction . . . so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Kreutter v. McFadden Oil Corp., 71 NY2d 460, 467 [1988]; see Stardust Dance Prods., Ltd. v. Cruise Groups Intl., Inc., 63 AD3d at 1264; Farkas v. Farkas, 36 AD3d 852, 853 [2007]; Bunkoff Gen. Contrs. v. State Auto. Mut. Ins. Co., 296 AD2d 699, 700 [2002]).

(Urfirer v. SB Builders, LLC, 95 AD3d 1616, 1617-18 [3d Dept 2012]).

The burden of proof is borne by plaintiff, the party seeking to assert personal jurisdiction over a defendant (Urfirer v. SB Builders, LLC, supra, People v. Frisco Mktg. of NY LLC, 93 AD3d 1352, 1353 [2012]; Stardust Dance Prods., Ltd. v. Cruise Groups Intl., Inc., 63 AD3d at 1264). A plaintiff need not make a prima facie showing of personal jurisdiction; rather, he or she need only come forward with a "sufficient start" warranting further discovery (Urfirer v. SB Builders, LLC, supra, citing Bunkoff Gen. Contrs. v. State Auto. Mut. Ins. Co., 296 AD2d at 700, quoting Peterson v. Spartan Indus., 33 NY2d 463, 467 [1974]).

Here, while plaintiff has not established the Court's jurisdiction over defendant Leahy, he has demonstrated a "sufficient start" such as to warrant discovery on the issue. [*4]Among other things, plaintiff alleges that Leahy, under the guise of Defenseagainstevil and Esotericfreedom blogs, specifically targeted a New York audience with libelous comments, used these alleged interactive blogs to solicit and encourage postings by New York residents, solicited donations from New Yorkers to maintain the blogs and even demanded money from plaintiff to remove an asserted libelous posting. Furthermore, plaintiff alleges that certain libelous conducted attributed to Leahy emanated from a residence located in Queens, New York.

Based upon the foregoing, it is hereby

ORDERED, that, plaintiff's motion for a default judgment against defendant Leahy is denied, without prejudice to reapplication following a determination of the jurisdictional issue; and, it is further

ORDERED, that, defendant Leahy's motion to dismiss for want of personal jurisdiction is granted to the extent that jurisdictional discovery shall take place so as to be completed by October 21, 2013, on which date the parties are directed to appear before the Court for a Status Conference.^[FN2]

The foregoing constitutes the Opinion, Decision and Order of the Court.

Dated: Carmel, New York

July 30 , 2013

S/__________________________________

HON. Lewis J. Lubell, J.S.C.

Daniel Szalkiewicz, Esq.

Faga Savino, LLP

ATTORNEYS FOR PLAINTIFF

399 Knollwood Road, Suite 301

White Plains, New York 10603

Ronald K. Friedman, Esq.

[*5]ATTORNEY FOR DEFENDANT LEAHY

1073 Main Streeet, Suite 205

Fishkill, New York 12524

Time Warner Cable

13820 Sunrise Valley

Herndon, VA 20171

Cablevision Systems Corporation

1111 Stewart Avenue

Bethpage, New York 11714

Kimberly Cirello

45 Charleys Place

Bay Shore, New York 11706

Kimberly Cirello

36 Robin Lane

Levittown, New York 11756