Monthly Archives: March 2015

Matter of Woodbridge Structured Funding, LLC v Pissed Consumer &,

___ 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.

Geffner v Mercy Med. Ctr.,

___ AD3d ___, 2015 NY Slip Op 01411 [2nd Dept., 2015]

In this medical malpractice-wrongful death action, the plaintiff interviewed one of the defendants before commencing the action, and recorded the conversation. The plaintiff is apparently an attorney, and appeared pro se in the the Appellate Division, leading to the inference that she is pro se in the action.

Defendants demanded a copy of the recording, to which the plaintiff objected. Supreme Court directed her to provide the copy or be precluded from using it at trial. On appeal, the Appellate Division held that the recording was not entitled to the absolute work product privilege merely because plaintiff made it in her capacity as an attorney. She did not show that failed to show that “the recording contained elements of opinion, analysis, theory, or strategy.” Similarly, there was no showing that it was trial preparation material, to which a conditional privilege applies. The order was therefore affirmed.

The opinion makes no mention of CPLR 3101 (e), which would seem to be the controlling paragraph. The paragraph is simple, direct and unequivocal: “A party may obtain a copy of his own statement.” In Briggs v. Spencerport Road Plaza, Inc., 19 A.D.2d 943, [4th Dept., 1963], the court observed that its purpose was to allow a party access to his own statements without having to prove special circumstances. Read More