Pre-Action Disclosure – The First Requirement is a Valid Cause of Action

Matter of Woodbridge Structured Funding, LLC v Pissed Consumer & PissedConsumer.com,

___ AD3d ___, 2015 NY Slip Op 01527

If nothing else, respondents here get the award for “party name of the week.”

It seems the respondents run a blog where consumers get to blow off steam about lousy customer service. Most of these complaints are posted anonymously and seem destined never to be read, accomplishing nothing for their authors while discomfiting the objects of their displeasure not a whit. In other words, they are a modern version of shouting into the wind.

The complaint at issue seems to fit that description. Petitioner runs a structured settlement business, apparently buying out structured settlements. The particular complaint, however, involved nothing more serious than the petitioner’s supposed failure to provide the anonymous customer with a $500 gas card, which the customer claimed had been promised in petitioner’s advertising.

You might think that the best way to deal with an angry customer like this, already reduced to posting anonymously on a site like this, would simply be to ignore him, perhaps watching with amused detachment as his complaint withers from lack of attention. Petitioner however, determined that the best way to assuage this angry customer was to sue him for defamation.

In order to do that, petitioner had to find the anonymous customer’s name; and in order to do that petitioner had to move for pre-action disclosure from the respondents, the owners of the blog. That motion, governed by CPLR 3102 (c), is where the matter finally becomes of interest to us.

Supreme Court dismissed the petition. Whereupon, of course, petitioner decided to take this appeal, ensuring that the complaint would finally get wider attention, and would be preserved in the Official Reports.

The motion for pre-action disclosure will lie where the petitioner can demonstrate the existence of a cause of action, but does not know the identity of the prospective defendant. Here, petitioner failed to demonstrate a meritorious claim, in that the anonymous customer’s statements were non-defamatory opinion. Moreover, petitioner failed to show that it had sustained any injury to its reputation. The proceeding was therefore properly dismissed by Supreme Court.

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