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Case 8:13-cv-03059-GJH Document 261 Filed 02/19/15 Page 1 of 1

Ronald D. Coleman
rcoleman@goetzfitz.com

February 19, 2015


BY ECF
Hon. George J. Hazel, U.S.D.J.
United States District Court
U.S. Courthouse
6500 Cherrywood Lane
Greenbelt, MD 20770
Re: Kimberlin v. National Bloggers Club
Docket No. 8:13-cv-03059-GJH
Dear Judge Hazel:
We represent defendant Ace of Spades blog in this matter and write concerning
the pending Request to Identify Ace of Spades submitted by plaintiff (Document
number 222).
We write to make the Court aware of an opinion just issued by the Appellate
Division of the New York Supreme Court in In re Woodbridge Structured Funding, LLC,
2015 NY Slip Op 01527 (February 19, 2015). In this short decision the Appellate
Division joined the ranks of appellate courts holding that parties are not entitled to prelitigation disclosure of information to identify the authors of online commentary where
defamation claims based on those comments fail to state a prima facie cause of action.
The court also noted that dismissal was proper given the failure to allege facts amounting
to cognizable damages arising from the alleged defamation.
A copy of the slip opinion is enclosed.
Respectfully submitted,
Ronald D. Coleman
cc: All counsel (ECF) and unrepresented parties (email)

55 Harristown Rd., Glen Rock, NJ 07452 |201-612-4444 (F) 201-612-4455


170 Old Country Rd., Suite 300, Mineola, NY 11501 | 516-741-2162 (F) 516-746-1024
One North Broadway, Suite 800 White Plains, NY 10601 | 914-946-7735 (F) 914- 946-0098

2015 NY Slip Op 01527


http://www.courts.state.ny.us/reporter/3dseries/
2015/2015_01527.htm

Tom, J.P., Saxe, Manzanet-Daniels, Gische, Clark, JJ.


14262

In re Woodbridge Structured
Funding, LLC,
Petitioner-Appellant,

Index 100336/13

-againstPissed Consumer and PissedConsumer.com,


et al.,
Respondents-Respondents.
_________________________
Finger & Finger, White Plains (Carl L. Finger of counsel), for
appellant.
Goetz Fitzpatrick LLP, New York (Ronald D. Coleman of counsel),
for respondents.
_________________________
Order, Supreme Court, New York County (Carol E. Huff, J.),
entered October 8, 2013, which denied the petition pursuant to
CPLR 3102(c) to compel respondents to disclose the identity of
the person or persons who posted alleged defamatory statements on
respondents weblog or blog, and dismissed the petition,
unanimously affirmed, without costs.
Petitioner, a private finance/structured settlement
business, seeks pre-action discovery of the identity of anonymous
speaker(s) who posted negative comments on respondents website,
PissedConsumer.com, regarding petitioners alleged failure to
fulfill an advertising promise to award prospective customers
with a $500 gas card that included statements such as petitioner

Lie[s] To Their Clients and will forget about you and . . .


all the promises they made to you once you sign on the dotted
line.

The motion was properly denied since petitioner failed to

demonstrate that it has a meritorious cause of action as required


to obtain pre-action discovery (see CPLR 3102[c]; Sandals Resorts
Intl. Ltd. v Google, Inc., 86 AD3d 32, 38 [1st Dept 2011]).
Nothing in the petition identifies specific facts that are false
and when the statements complained of are viewed in context, they
suggest to a reasonable reader that the writer was a dissatisfied
customer who utilized respondents consumers grievance website
to express an opinion.

Although some of the statements are based

on undisclosed, unfavorable facts known to the writer, the


disgruntled tone, anonymous posting, and predominant use of
statements that cannot be definitively proven true or false,
supports the finding that the challenged statements are only
susceptible of a non-defamatory meaning, grounded in opinion (see
Sandals Resorts Intl. Ltd., 86 AD3d at 43-45).

Petitioner also

has inadequately asserted the damage element of a defamation


claim, inasmuch as it has not alleged facts that would indicate
injury to its business reputation from the postings (see id. at
39; see also Liberman v Gelstein, 80 NY2d 429, 436 [1992]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2015

_______________________
CLERK