Copp v. Ramirez
| Citation | 874 N.Y.S.2d 52,62 A.D.3d 23,2009 NY Slip Op 01360 |
| Decision Date | 24 February 2009 |
| Docket Number | 4895A.,4895.,4895B. |
| Parties | DOUG COPP et al., Appellants, v. RAYNER RAMIREZ et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Plaintiff Copp commenced this defamation action after his tale of courage and sacrifice at Ground Zero was called into question by eyewitnesses to his activities on the rescue site, but not before his tale convinced the September 11 Victim Compensation Fund to award him $649,000. Copp, an out-of-state plaintiff, sued out-of-state defendants Miller, Grace and Linthicum (the last of whom is a reporter for the Albuquerque Journal) for allegedly making defamatory statements in New Mexico to reporters from New York's NBC Dateline program concerning events they observed during their brief visit to Ground Zero three years earlier. Plaintiffs also sued NBC-Universal and its employees (Ramirez, Hockenberry and Phillips) involved in the Dateline report (the NBC defendants). The claims against the out-of-state defendants must be dismissed because none of them is subject to personal jurisdiction in New York with regard to statements made against Copp in New Mexico. Likewise, the appeal as to the NBC defendants must be dismissed because plaintiffs failed to properly perfect their appeal against them.
Doug Copp founded and ran the American Rescue Team International (ARTI), a California corporation which purportedly engaged in missions to recover humans and human remains at disaster sites. Two days after the September 11, 2001 terrorist attacks, Copp flew to New York on a corporate jet owned by the Albuquerque Journal and piloted by the Journal's publisher. The office of a New Mexico congressman had obtained special federal clearance for the flight based upon Copp's credentials as an experienced worldwide disaster rescuer. At Ground Zero, Copp intended to use his "Copp Casualty Locator" (CCL), a special device he had invented to locate human remains.
New Mexico residents Michael L. Miller, John M. Grace and Leslie Linthicum accompanied Copp on the plane from New Mexico to Ground Zero. Miller, who owned and operated a film production company in New Mexico, reportedly accompanied Copp on this trip to explore the possibility of producing a documentary about Copp's life as a rescuer. Miller visited Ground Zero on four occasions for a total of 12 hours; he stayed in New York for about 60 hours. Grace, a freelance director of photography and a cameraman, with his principal place of business in New Mexico, reportedly visited Ground Zero with Copp for less than four hours; he stayed in New York for no more than 36 hours. Linthicum accompanied Copp to Ground Zero as a reporter for the Albuquerque Journal; she stayed in New York about 48 hours.
During his two weeks at Ground Zero, Copp did not recover any human remains; however, he claims that his team was able to recover remains at the Staten Island landfill. He also claims that as a result of his exposure to the "toxic soup" that accumulated at Ground Zero, he sustained life-threatening injuries. The September 11 Victim Compensation Fund (9/11 Fund) awarded him $649,000 for medical expenses and lost wages.
From July 11 to 18, 2004, the Albuquerque Journal published a series of articles written by Linthicum, casting doubt on whether Copp was entitled to the $649,000 he received from the 9/11 Fund. These articles also reported that the Department of Justice had launched an investigation into the legitimacy of Copp's petition to the 9/11 Fund. Search and rescue experts around the world who were interviewed also questioned Copp's claims about his exploits.
On July 15, 2005, NBC-Universal, a New York-based corporation, broadcast on its Dateline news magazine program a story addressing the controversy that led to the Department of Justice's investigation and the questions raised by the Journal articles.1 Miller, Grace and Linthicum were interviewed and filmed in New Mexico for the Dateline report; segments of their interviews were broadcast on Dateline. The last segment of the Dateline report addressed Copp's responses to the allegations that he had defrauded the 9/11 Fund.2
In June 2006, one year after the NBC report aired, Copp and ARTI commenced this action against the NBC defendants and the New Mexico defendants. In the complaint, plaintiffs aver claims of defamation, intentional infliction of emotional distress and fraud, all stemming from the alleged defamatory statements aired on Dateline. Subsequently, Supreme Court granted defendants' respective motions dismissing the complaint against them. First, the court found that plaintiffs failed to establish the falsity of the factual assertions upon which their cause of action for defamation is based. With respect to the causes of action for intentional infliction of emotional distress and fraud, the court found that these causes of action "are largely duplicative" of the defamation claim and improperly seek only punitive damages (2007 NY Slip Op 34404[U], *3). Furthermore, the court found that the cause of action for intentional infliction of emotional distress "does not come close to sufficiently pleading the elements of such a claim," and that the fraud cause of action "is not pled with the specificity required by CPLR 3016 (b)" (id.). Lastly, the court found that it had no personal jurisdiction over the out-of-state defendants Linthicum, Grace and Miller because "the events relied upon against those defendants for the alleged defamation occurred outside of New York State" (id.). Plaintiffs have appealed the dismissal of the action against all defendants, and we affirm.
As an initial matter, we examine the NBC defendants' argument on appeal that plaintiffs have not properly appealed the Supreme Court order concerning them. Supreme Court issued three orders in this action relevant to this appeal. The first, dated October 2, 2007, granted the joint motion of defendants Grace and Miller to dismiss the complaint against them. The second, dated three days later, granted the motion of defendant Linthicum to dismiss the complaint against her. The third, also dated October 5, 2007, granted the joint motion of the NBC defendants to dismiss the complaint against them. Supreme Court issued an opinion on October 9, 2007, explaining why it had granted the motions (id.). Plaintiffs filed and served a notice of appeal "from the two Short Form Orders and Opinion," dated October 2, 5, and 9, that had "dismissed the Complaint in its entirety as to all defendants." The two short form orders that plaintiffs included in their appendix were the orders granting the motions of Grace and Miller, and Linthicum; the order granting the motion of the NBC defendants was not included in the appendix.
The NBC defendants argue that plaintiffs' purported appeal from the order granting the NBC defendants' motion to dismiss must be dismissed as jurisdictionally defective because plaintiffs did not refer to that order in their notice of appeal or include a copy of the order with it. We agree with the NBC defendants and hold that the notice of appeal does not contain an accurate description of the October 5, 2007 order dismissing the action against them. Although we have the authority in our "discretion, when the interests of justice so demand," to treat certain inaccurate notices of appeal as valid (CPLR 5520 [c]; see Robertson v Greenstein, 308 AD2d 381 [2003], lv dismissed 2 NY3d 759 [2004]; Siegel, NY Prac § 534, at 922 [4th ed]), we decline to do so under these circumstances (see Rupp-Elmasri v Elmasri, 8 AD3d 464 [2004]). Plaintiffs failed to include in their appendix a copy of the NBC defendants' order, a relevant and necessary document of the record, which serves as yet another ground to dismiss the appeal (CPLR 5528 [a] [5]; Reiss v Reiss, 280 AD2d 315 [2001]; Kraham Realty v Rothschild, 10 AD2d 634 [1960]; cf. Vertical Computer Sys., Inc. v. Ross Sys., Inc., 11 AD3d 375, 379-380 [2004]). Accordingly, the only issues properly before this Court are those dealing with out-of-state defendants Miller, Grace and Linthicum.
We next examine the argument raised by all the out-of-state defendants that New York courts may not exercise personal jurisdiction over them based upon statements they made in New Mexico with regard to plaintiffs' activities that took place in New York three years earlier. Because these defendants are not New York residents, they cannot be subject to personal jurisdiction in New York unless plaintiffs prove that New York's long-arm statute confers jurisdiction over them by reason of their contacts within the State. The burden rests on plaintiffs, as the parties asserting jurisdiction (Bunkoff Gen. Contrs. v State Auto. Mut. Ins. Co., 296 AD2d 699, 700 [2002]).
Under CPLR 302 (a) (1), the provision solely at issue on this appeal, long-arm jurisdiction over a non-domiciliary exists where a defendant transacted business within the state, and the cause of action arose from that transaction. "If either prong of the statute is not met, jurisdiction cannot be conferred" (Johnson v Ward, 4 NY3d 516, 519 [2005]). Under the statute, "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....
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