“I offer no apology; I am the victim here, not a miscreant.”~ Joseph Rakofsky

Occam’s razor, also known as Ockham’s razor, or in Latin referred to as lex parsimoniae (the law of parsimony, economy or succinctness), is the principle that among competing hypotheses, the one that makes the fewest new assumptions usually offers the correct one, and that the simplest explanation will be the most plausible until evidence is presented to prove it false.

My co-defendant and local counsel in the Rakofsky v. The Internet lawsuit, Eric Turkewitz has  posted a new update #4 which includes a new court filing by the plaintiff, Joseph Rakofsky:

Update #4, 1/31/12 – Rakofsky’s Reply to other defense opposition to the motion in the Appellate Division to lift the stay for him only. No response to our papers (which were served 1/26/12, one day before they were due to be served): RakofskyReply. The opposing papers to which he refers are here: Teschner  (Yampolsky) Opp and Weissman (Reuters) Opp

Some may describe Rakofsky’s Reply Affidavit and legal writing in uncharitable terms:

bewildering

Delphic

cryptic

enigmatic

fathomless

impenetrable

incognizable

inconceivable

inscrutable

mystifying

perplexing

puzzling

sibylline

unfathomable

ungraspable

unimaginable

unintelligible

unknowable

Not I. I merely report the facts in evidence. Yet, the correct adjective escapes me…Ah, yes, “incomprehensible”, or as in Rakofsky’s own words:

The subtleties of Rakofsky’s formidable legal argument and rhetorical flourishes are exemplified in the following precatory phrasing:

As Ken @ Popehat remarked on Twitter:

par·si·mo·ni·ous (pär s -m n – s). adj. Excessively sparing or frugal. par si·mo ni·ous·ly adv. par si·mo ni·ous·ness n.

Whatever one may think of Mr. Rakofsky or his lawsuit, one cannot call him parsimonious in his prose.

As Edmund Burke once said:

Mere parsimony is not economy. Expense, and great expense, may be an essential part in true economy.

Or, in the immortal words of Titus Livius:

There is nothing worse than being ashamed of parsimony or poverty.

The day of judicial reckoning fast approaches….

Previous Related Posts:

• Zen and the Art of Blawging Maintenance (thetrialwarrior.com)
• The Rakofsky Effect: It Actually Works! (thetrialwarrior.com)
• The Rakofsky Transcript: Cost = $1400; Value = Priceless (thetrialwarrior.com)
• Testicular Fortitude and Free Speech (thetrialwarrior.com)
• The Rakofsky Effect (thetrialwarrior.com)
• Repent, for the End Is Nigh! the Rakofskylpse Is Upon Ye! (thetrialwarrior.com)
• To My Fellow “Rakofsky 74′ers”: I Salute You (thetrialwarrior.com)
• Are You A Legal Expert? Really? (thetrialwarrior.com

Norm Pattis wrote a post a few months ago entitled: Updated: Rakofsky: Is Internet Mobbing A Tort? charitably offering up to the Plaintiff in the Rakofsky v. Internet litigation the makings of a new nominate tort:

What interests me about the Rakofsky case is less whether he erred at trial. I assume he did. The judge’s words leave little doubt about it. What interests is whether the tort of mobbing, taking shape in the context of employment law, will find its way into disputes of this sort. It should.

Rakofsky sued for defamation, contending that the scores of folks who mocked him uttered untruths that damaged his reputation. But what if the initial press reports were accurate? What if the trial court did declare a mistrial for manifest necessity because of ineffective assistance of counsel? Does that mean that subsequent efforts to ruin his reputation, to fan the flames, as it were, are not actionable? It is one thing to report on a judge’s assessment of a lawyer’s performance at trial; quite another to saddle Rakofsky up and make him into you very own hobby horse.

The tort of mobbing recognizes that even truth can be turned to malicious purpose. We recognize this in the context of publication of private facts, and permit suit for invasion of privacy. But what about republication with malice of public truths? In the Rakofsky case, news organizations had every right to report the facts of this case as they saw them. Thereafter, did private writers cross a line the law is prepared to recognize by seeking less to report facts than to shame and humiliate him?

…

The common law recognizes a tort of outrage, or intentional infliction of emotional distress. To prove it, one need show an intent to inflict distress and the infliction of that distress. The speech supporting the distress can, in fact, be true. It is an open question whether there a tort of Internet mobbing can gain traction in the courts. The Rakofsky case might provide a means of testing it.

Ken at Popehat provides a witty rejoinder in his post:  The Tort of Internet Mobbing Is Perfect For Suing The Internet:

So: don’t blame Rakofsky. He’s just got his finger on the pulse. But a dilemma remains: what is the nature of this newly invented tort of internet mobbing? What are its elements? Well, with the encouragement and help of Scott Greenfield, I think I have come up with a set of elements worthy of a jury instruction:

INTERNET MOBBING: ESSENTIAL FACTUAL ELEMENTS

[Plaintiff] asserts that [Defendants] have committed the tort of internet mobbing and hurt [Plaintiff's] feelings really quite badly. The law recognizes that this is a shame. To establish that [Defendants] have committed the tort of internet mobbing, [Plaintiff] must prove the following:

1. That [Defendant] joined a group of three or more persons [including co-bloggers, commenters, and sock puppets];

2. That some member of the group made some use of the internet;

3. That the use of the internet including writing something about [Plaintiff];

4. That something could be described in one or more of the following ways:
a. Mean,
b. Hurtful,
c. Cruel,
d. Uncomfortably true,
e. Emotionally distressing,
f. Bad for business and/or branding or Google rank,
g. Just not kind;

5. That deep and progressive thinkers believe that the right of [Plaintiff] to be free of any such comment outweighs the right of [Defendant] to speak;

6. That at least one other member of the group committed an overt act endorsing or acknowledging the writing through a link, tweet, cross-post, thumbs up, +1, or lol;

7. That [Plaintiff] is, in at least one person’s view, special, and thus deserving of the protection of the legal system from criticism or dissent.

Glad to be of help. There’s a whole internet of butthurt potential clients out there. Better get cracking.

Eric Turkewitz’s update reports that Rakofsky has now moved to further amend his pleading:

Joseph Rakofsky has not, quite apparently, put away his shovel. He is still digging. (Synopsis of case and my opinions before becoming local counsel, here.)

He has now filed a motion to amend the complaint a second time, with a 300-page whopper including 1,248 paragraphs. He has 78 causes of action and demands, and, if my calculations are correct, he demands $145,000,000 in damages.

In addition to the extraordinary damage claims, Rakfosky seeks to add Yahoo! and TechDirt into the lawsuit, among 15 new parties.

And he seeks to create a new cause of action for Cyber-bullying, or Internet Mobbing, due to the things people wrote about him after his ill-fated trial before JudgeWilliam Jackson down in Washington DC.

So what should one make of this new nominate tort of “internet mobbing” proposed by Pattis and enthusiastically embraced by the Plaintiff Rakofsky?

Here is the New York Supreme Court’s view:

“Insofar as the plaintiff’s counsel suggests that the posts constitute cyberbullying, the courts of New York do not recognize cyberbullying or Internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyberbullying as a cognizable tort action.”

Finkel v. Dauber, 29 Misc. 3d 325, 906 N.Y.S.2d 697 - NY: Supreme Court-Nassau County, 2010

[h/t: Roy A. Mura at Coverage Counsel blog]

It is refreshing for a well-known trial lawyer such as Pattis to offer his neutral, unsolicited musings concerning an ongoing case involving a large portion of the Blawgosphere.  As the Zen proverb suggests: “Those who know don’t tell and those who tell don’t know.”

While the tort of “internet mobbing” may have superficial appeal to those who consider online bullying as a problem in need of a legislative or judicial solution; a thicker skin is the best protection against the cold, hard truth.

Tort law recognizes rights, obligations, and remedies that are applied by courts in civil proceedings to provide redress to individuals who have suffered harm from the wrongful acts of others.

If internet mobbing is a viable new tort, then it must also have an obverse.

What could it be?

How about the tort of maintenance?

The Court of Appeal for Ontario in McIntyre Estate v. Ontario (Attorney General) ,2002 CanLII 45046 (ON CA), 61 OR (3d) 257,  218 DLR (4th) 193, 164 OAC 37 (Ont. C.A.) held that maintenance:

“…is directed against those who, for an improper motive, often described as wanton or officious intermeddling, become involved with disputes (litigation) of others in which the maintainer has no interest whatsoever and where the assistance he or she renders to one or the other parties is without justification or excuse….

…

It is only when a person has an improper motive which motive may include, but is not limited to, “officious intermeddling” or “stirring up strife”, that a person will be found to be a maintainer.

Are you taking notes, Norm?

And now, a brief musical interlude: Bush, “Everything Zen”

2.   Someone else then submits the phrase to The Urban Dictionary:

3.  Rakfosky then confirms the hypothesis and proves the theory by filing a new Notice of Motion and supporting Affidavit .As Eric Turkewitz, (co-defendant and local counsel assisting pro hac vice counsel Marc Randazza, representing 20 of the Rakfosky defendants) notes:

[Rakofsky] has now filed a motion to amend the complaint a second time, with a 300-page whopper including 1,248 paragraphs. He has 78 causes of action and demands, and, if my calculations are correct, he demands $145,000,000 in damages.

…

Part 1 of the proposed Second Amended Complaint is here and Part 2 is here.

4. Finally, it appears I am no longer the lone Canadian in this internet version of Franz Kafka’s The Trial. Welcome Canadian Lawyer Magazine and Reuters Canada as co-defendants! (see page 167 of the proposed Second Amended Complaint).

See also, Ken’s post at Popehat.com: The Tort of Internet Mobbing Is Perfect For Suing The Internet.

“A more academic English translation of the Spanish word “cojones”, that originally stood for testicles, two spheric glands part of the reproductive system of males, also commonly known as balls.To have testicular fortitude is to show strength, courage and sagacity in challenging situations. The story of how strength and courage is related to two nuts encased in shriveled skin hanging from between a man’s legs is a fascinating story that i don’t have the time to go into right now.

You can’t win with reserve and lassitude
And you can’t face the unforgiving multitude
Without the manly trait of testicular fortitude”

Strength. Courage. Sagacity. Principled words or words about principles.

Some will be amused (and likely others disgusted) by a recent story circulating the blawgosphere about freedom of speech and the aforementioned male genitalia. In a piece entitled Is A Ban on ‘Truck Nuts’ Unconstitutional? Elie Mystal at Above The Law reports on a  a South Carolina woman  given a $445 ticket for her truck’s nuts. Mystal writes,

So, for those playing along at home, South Carolina will defend to the death your right to display the Confederate Flag, the symbol of a regime committed to slavery and racial oppression, but plastic testicles is a bridge too far.

Yes, like most obscenity cases, this one is turgid with hypocrisy….

The woman’s name is Virginia Tice. According to WCSC News-Charleston, Tice did it because she wanted to make a statement. The ABA Journal has this wonderful quote from her lawyer:

“She’s such a sweet lady and she just says ‘I don’t want to pay the fine.’ We’ll let a jury decide whether this is really criminal behavior. I don’t want to take away from the importance of free speech, but it’s really comical,” attorney Scott Bischoff of the Savage firm tells the newspaper, explaining that he plans to pursue a First Amendment defense.

Aww, she’s just a girl who needed some nuts on her truck.

The fact that it is a female who proudly decorated her truck with a symbol of male virility should not be lost on anyone who relishes irony.

Despite the absurdity of truck nuts as a constitutional issue, there is something to be said about refusing to yield or surrender one’s freedom of speech, irrespective of the crass symbolism associated with the underlying message.

Which brings me to the St. Thomas School of Law and its librarian, Deborah “Debby” Hackerman.  Both parties are co-defendants in the online defamation case stylized by Scott H. Greenfield as “Rakofsky v. The Internet” . (See the side bar for my proudly displayed “Proud Member of the Rakofsky 74″ badge).

Scott is righteously (and rightfully) indignant over news that both St. Thomas School of Law and Hackerman have capitulated surrendered conceded succumbed kowtowed submitted prostrated assumed the position settled Rakofsky’s claim for a mere $5,000 “nuisance” payment. Scott minces no words in his updated post, The Weakest Link (Space Alien Update):

There are many things a student can learn in law school.  The newest thing is to be a witless coward, cave in when there’s not a reason in the world and buy off one’s problems.  Welcome to St. Thomas School of Law, where Deborah Hackerson will be your guide.

St. Thomas School of Law Stipulation

Rakofsky graciously offered to settle the case with all of the defendants for the “nominal” amount of $5,000.  One would have thought that all the defendants laughed.  Obviously, not all.

It was silly, an extortion attempt by a child.  And they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

Mark Bennett at Defending People in a similarly castrative post, expresses his utter disdain for this improvident settlement:

By settling with Rakofsky, the law school and Hackerson have painted a great big target on themselves for anyone else who wants to file a frivolous lawsuit. (Hear that, disgruntled unemployed St. Thomas grads? File that lawsuit; they’ll settle for nuisance value!)

Most of the defendants are fighting Rakofsky. They’ve joined together in several groups to share resources and hire counsel—not just because they can win the suit, but also because fighting is a matter of principle: they are fighting for free expression, and for the First Amendment. Because if you give one schmuck like Rakofsky money instead of utter humiliation in court, every schmuck whose feelings you hurt is going to file a lawsuit against you, and you’re going to have to either a) join the happysphere and stop speaking the truth; or b) spend your life settling vacuous defamation suits.

Maybe the settlement was forced on Hackerson and the University by their insurer. I mean only this: the insurance company might have refused to defend them if they didn’t accept the settlement. If so, then like every other defendant the law school and Hackerson had two options: give in to extortion, buying peace at the cost of  your right to free expression; or hire a lawyer and fight.

Ultimately, the Board of Regents of St. Thomas School of Law, Hackerson and their insurer, Travelers, will have to live with their decision to pay Rakofsky to “buy peace” and make this litigation go away. However, the internet and the blawgosphere have a prodigious institutional memory.

Initially, I assumed that the “St. Thomas” of “St. Thomas School of Law” was “St. Thomas the Apostle” or perhaps “Thomas More”. Apparently, the school’s namesake is “Thomas Aquinas”

In his Summa Theologica, St. Thomas Aquinas wrote:

Virtue denotes a certain perfection of a power. Now a thing’s perfection is considered chiefly in regard to its end. But the end of power is act. Wherefore power is said to be perfect, according as it is determinate to its act.

The American Rule is considered by Maureen Cosgrove at Jurist-Paper Chase who reports on “Supreme Court rules party must pay fees for frivolous claims alone“  discussing today’s decision in Fox v. Vice  , 563 U. S. ____ (2011) (U.S.S.C.).

Fox claimed that he was the victim of dirty tricks during his successful campaign to become the police chief of Vinton, La., and filed a state-court suit against Vice, the incumbent chief, and the town.  Fox’s suit asserted both state-law claims, including defamation, and federal civil rights claims under 42 U. S. C.§1983, including interference with Fox’s right to seek public office. Vice removed the case to federal court based on the §1983 claims. Following discovery, Vice moved for summary judgment on the federal claims, which Fox conceded were invalid.

The District Court dismissed the frivolous claims with prejudice and remanded the remaining claims to state court, noting that Vice’s attorneys’ work could be useful in the state-court proceedings. Vice then asked the federal court for attorney’s fees under §1988, submitting attorney billing records (dockets) estimating time spent on the entire suit, without distinguishing time spent between the dismissed federal claims and the remnant state claims. The court granted the motion on the ground that Fox’s federal claims were frivolous, awarding Fox all of his attorneys’ fees in the suit. Although the state-law allegations had not been found frivolous, the court did not require Vice to parse out the work the attorneys had done on both sets of claims and declined to reduce the fee award to account for the remaining state-law claims, noting that both sides had focused on the deemed frivolous §1983 claims.

The Fifth Circuit affirmed, rejecting Fox’s argument that each individual claim in a suit must be held to be frivolous for the defendant to recover any fees, and agreeing with the District Court that the litigation had focused on the frivolous federal claims.

Writing for the unanimous Court, Kagan, J.  notes,

Our legal system generally requires each party to bearhis own litigation expenses, including attorney’s fees, re-gardless whether he wins or loses. Indeed, this principle is so firmly entrenched that it is known as the “American Rule.” See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). But Congress hasauthorized courts to deviate from this background rule incertain types of cases by shifting fees from one party toanother. See Burlington v. Dague, 505 U. S. 557, 562 (1992) (listing federal fee-shifting provisions). (at 5)

Justice Kagan adds,

” But the presence of these unsuccessful claims does not immunize a defendant against paying for the attorney’s fees that the plaintiff reasonably incurred in remedying a breach of his civil rights.

Analogous principles indicate that a defendant may deserve fees even if not all the plaintiff’s claims were frivolous. In this context, §1988 serves to relieve a defendant of expenses attributable to frivolous charges. The plaintiff acted wrongly in leveling such allegations, and the court may shift to him the reasonable costs that thoseclaims imposed on his adversary. See Christiansburg, 434 U. S., at 420–421. That remains true when the plaintiff’s suit also includes non-frivolous claims. The defendant, of course, is not entitled to any fees arising from these non-frivolous charges. See ibid. But the presence of reasonable allegations in a suit does not immunize the plaintiff against paying for the fees that his frivolous claims imposed. (at 7)

The District Court and Fifth Circuit decisions were reversed and remanded to the District court to apply the “but for” rule for fee-shifting.

Speaking of frivolous lawsuits, (albeit only involving state-law defamation, intentional infliction of emotional harm and intentional interference with contractual relations claims), Eric Turkewitz in his Affidavit  in the Rakofsky v. The Internet litigation has deposed that:

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Eric has filed  a motion is to extend the time to answer for all defendants, to establish a unified schedule for making motions and answering, and to admit Marc Randazza pro hac vice. He has posted a copy of his ably drafted Affidavit and a copy of the much anticipated Trial Transcript.

According to J-Dog (the pseudonymous author of the Restoring Dignity to the Law Blog) in response to The Rakofsky’s demand for an apology and retraction (and compensation), J-Dog offered to correct his entries and apologize if The Rakofsky provided proof that the facts were different than what the Washington Post claimed. The Rakofsky then replied:

“I have a transcript, but you’re the one who wrote the story and you need to get it yourself. The transcript cost me $1400. I insist that you not take my word for it and buy the transcript yourself, which you should have done before you presumed to harm me.”

The transcript may have cost Rakofsky $1400, but from where the ‘Rakofsky 74′ defendants sit, it is priceless.

Related articles

• The Rakofsky Effect (thetrialwarrior.com)
• Repent, for the End Is Nigh! the Rakofsky-lpse Is Upon Ye! (thetrialwarrior.com)
• To My Fellow “Rakofsky 74′ers”: I Salute You (thetrialwarrior.com)
• The Rakofsky 74 (militaryunderdog.com)
• Legal rebuttal: “vade et caca in pilleum et ipse traheatur super aures tuo” (boingboing.net)
• Of Nuclear Bombs and Fallout (or Crap is King) (militaryunderdog.com)
• Are You A Legal Expert? Really? (thetrialwarrior.com)
• Lying Piece of $%^&. With Screenshot as Evidence (militaryunderdog.com)
• Mistrial Declared When Judge Is ‘Astonished’ By Touro Grad’s Incompetence (abovethelaw.com)
• Lawyer of the Month: Lots Of Things Mistrials Can Win You (abovethelaw.com)

Apparently, Rakofsky also had a website (the link is to an archived version saved by Mark Bennett- h/t to commenter David Shulman) advertising his legal services in Connecticut. This may pose a problem given that the Connecticut Judicial Branch has no record of a CT licensed attorney named Rakofsky:

Since I neither practice in Connecticut, nor am I admitted there pro hac vice, I defer to CT licensed attorneys to opine on whether advertising one’s legal services in a state where one is unlicensed is kosher. I do not know whether Rakofsky’s associates/partners/colleagues have pro hac vice status in CT, but none of them are licensed to practice in CT (run the State of Connecticut Judicial Branch Attorney/Firm Inquiry to satisfy yourself).

Meanwhile, my fellow defendant and esteemed colleague, Eric Turkewitz at the New York Personal Injury Law Blog, throws down the proverbial gauntlet in his reply post: Joseph Rakofsky — I Have An Answer For You. 

While my Latin is admittedly rusty, the sage advice that Turkewitz graciously offers to Joseph Rakofsky and his attorney, Richard Borzouye, Esq. may also be loosely translated to: 

Vade in alvum in motu abstracta atque casside in aures.

Finally, as more blawgers continue to join the fray by expressing their opinions and being added as defendants in the Rakofsky v. The Internet litigation, I leave you with this variation of the Streisand Effect, which I have coined as the “Rakofsky Effect”:

UPDATED: Please also read Mirriam Seddiq’s thoughtful post at Not Guilty: “Chiming In”.

Related articles

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Image by Walt Jabsco via Flickr

Mitchell H. Rubinstein (New York Law School; St. John’s University – School of Law) and blog editor of the Adjunct Prof Law Blog, has published “A Peek at New York Defamation Law”, New York State Bar Journal, Vol. 82, p. 58, Nov./Dec. 2010/ NYLS Legal Studies Research Paper No. 10/11 #14.

Here’s the abstract:

This article is a primer on the law of defamation in New York. The article discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth and opinion, and the different types of privileges.

A copy of the article may be downloaded here.

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I will demur in disclosing my position on the merits of the defamation lawsuit, since I haven’t read it yet. Personally, I think that any defamation claim arising from my post is resoundingly [redacted] and I strongly recommend that both the plaintiff and his counsel take my advice and  go [redacted].

It’s not as though I don’t stand behind the one-line statement about Rakofsky made  in my original post, or the fact that truth is an absolute defence to a defamation claim in pretty much any jurisdiction that upholds the rule of law and protects freedom of expression.

It’s just that as someone who practices defamation law and knows a thing or two about conflict of laws and jurisdiction, now is not the time to express my legal position or my personal opinions.

I emphasize the phrase “personal opinions” for a number of reasons, but mostly because this lawsuit presents a variety of teaching moments, some of which have already been amplified by recent follow-up posts by some of my fellow “Rakofsky 74″ cohorts such as:

• Scott “Simple” Greenfield,
•  Jamison “My wife told me so” Koehler,
•  Carolyn “My co-author has my back” Elefant
• and other blawgers and putative co-defendants, most notably Colin Samuels of Infamy or Praise fame  (or is it infamy?) and Joshua King at the Avvo blog.

I do have a few musings that I would like to share, and to inject some legalese,  “without limiting the generality of the foregoing”:

1. This is a personal blawg, not a professional or firm-related blawg. Readers can easily find my blawg disclaimer in the side-bar which reads:

Disclaimer

This is a personal blawg. The views expressed and the content provided on this blawg (or on Twitter for that matter) is for nonprofit educational purposes and reflect my personal, not my professional, opinions. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this blawg does not create a lawyer-client relationship. If you need legal assistance, consult a lawyer in your jurisdiction. If you want to talk to me directly, call my office.

The side-bar also conveniently contains Creative Commons non-commercial copyright notice:

“This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.”

2.  I am willfully blind. I have deliberately averted my gaze by not reading the plaintiff’s complaint linked in various posts and on Twitter. My natural sense of curiosity is tempered by 18 years of legal experience, a considerable amount of which time has focused on international litigation and arbitration, which invariably implicates issues of subject-matter and personal jurisdiction, all of which informs me on how not to submit, attorn or waive jurisdictional arguments.

3.  Social media is often maligned, and I am the first to acknowledge that I have joined in the maligning, but not the malingering. There are intangible benefits to blawging and Twittering, aside from expressing and sharing one’s views on the intersection of law, politics and society.  There is also the inter-connectedness and comaraderie within the Blawgosphere; albeit the connections are virtual in most cases, until the inevitable “tweet-up” in New York, although if Scott Greenfield is hosting, he will likely insist on calling it a “twit-up”.

4. Finally, while I am grateful to Al Gore for inventing the interwebz and to Google ® for making legal research so much easier, a h/t must be extended to Mark W. Bennett and Scott H. Greenfield, each of whom pointed out the New York Long Arm Statute § 302. which reads:

§ 302. Personal jurisdiction by acts of non-domiciliaries

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state. [emphasis added]

Readers may be interested in two companion decisions by the Honourable Judge Madden of the Supreme Court of New York applying § 302 of the New York Long-Arm Statute to defamation actions against out-of-state defendants:

Henderson v Phillips, 2010 NY Slip Op 31654(U)  (Sup Ct, NY Co),(June 28, 2010) Docket Number: 110632/09 per J.A. Madden, J.

Gary Null & Associates v. Phillips , 2010 NY Slip Op 20280 [29 Misc 3d 245] (June 28, 2010) (Sup Ct, NY Co), Docket Number: 110508/09 per J.A. Madden, J.

To my fellow “Rakofsky 74′ers”: I Salute You. 

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