author: Graffeo, J. Jones, J. (dissenting).

text:
    [881 NE2d 180, 851 NYS2d 84]
    Keith Haywood, Appellant, v Curtis Drown, Respondent. Keith Haywood, Appellant, v Pat Smith et al., Respondents.
    (Action No. 1.)
    (Action No. 2.)
    Argued October 17, 2007;
    decided November 27, 2007

      POINTS OF COUNSEL

      Dechert LLP (Jason E. Murtagh, of the Pennsylvania bar, admitted pro hac vice, of counsel) and Dechert LLP, New York City (Gary J. Mennitt of counsel), for appellant.
    I. Correction Law § 24’s alleged bar of 42 USC § 1983 claims in state courts would violate the Supremacy Clause. (Woodward v State of New York, 23 AD3d 852; Howlett v Rose, 496 US 356; Will v Michigan Dept. of State Police, 491 US 58; Brown v State of New York, 89 NY2d 172; Gittens v State of New York, 132 Misc 2d 399; Felder v Casey, 487 US 131; Martinez v California, 444 US 277; Wyatt v Cole, 504 US 158; Carey v Piphus, 435 US 247; Smith v Wade, 461 US 30.) II. The courts below misinterpreted Correction Law § 24, an indemnification statute not designed to eliminate 42 USC § 1983 damages claims from state court.

      Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb, Barbara D. Underwood and Nancy A. Spiegel of counsel), for respondents.
    I. Correction Law § 24, by circumscribing the jurisdiction of the state courts over claims for damages against the New York State Department of Correctional Services personnel, does not violate the Supremacy Clause. (Arteaga v State of New York, 72 NY2d 212; Cepeda v Coughlin, 128 AD2d 995, 70 NY2d 602; Matter of McGee v Korman, 70 NY2d 225; LaValle v Hayden, 98 NY2d 155; People v Tichenor, 89 NY2d 769, 522 US 918; Will v Michigan Dept. of State Police, 491 US 58; Maine v Thiboutot, 448 US 1; National Private Truck Council, Inc. v Oklahoma Tax Comm’n, 515 US 582; Howlett v Rose, 496 US 356; Brown v Gerdes, 321 US 178.) II. Correction Law § 24 is not an indemnification statute. (Matter of Barbara C., 64 NY2d 866; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.)

      Susan Johnson, Ithaca, Karen Murtagh-Monks, Patricia Warth, Betsy Hutchings, Steven Banks, New York City, John Boston and Alfred O’Connor, Albany, for Prisoners’ Legal Services of New York and others, amici curiae.
    I. Correction Law § 24, as interpreted by the court below, violates the Supremacy Clause because it is preempted by federal law. (Monell v New York City Dept. of Social Servs., 436 US 658; Howlett v Rose, 496 US 356; Claflin v Houseman, 93 US 130; Maine v Thiboutot, 448 US 1; Martinez v California, 444 US 277; Woodward v State of New York, 23 AD3d 852; Cepeda v Coughlin, 128 AD2d 995; Baker v Coughlin, 77 F3d 12; Brown v Coughlin, 869 F Supp 196; Degrafinreid v Ricks, 452 F Supp 2d 328.) II. Correction Law § 24, as interpreted by the court below, violates the Supremacy Clause because it burdens the litigation of 42 USC 1983 claims. (Felder v Casey, 487 US 131; Cepeda v Coughlin, 128 AD2d 995; Woodward v State of New York, 23 AD3d 852; Brown v State of New York, 89 NY2d 172; Cavanaugh v Doherty, 243 AD2d 92; Wright v Coughlin, 31 F Supp 2d 301, 225 F3d 647; Riviello v Waldron, 47 NY2d 297; Murray v Reif, 36 AD3d 1167; Bouffard v Lewis, 139 Misc 2d 786.) III. Correction Law § 24, as interpreted by the court below, violates the Supremacy Clause because it discriminates against a federal right. (Testa v Katt, 330 US 386; Claflin v Houseman, 93 US 130; Second Employers’ Liability Cases, 223 US 1; Douglas v New York, N. H. & H. R. Co., 279 US 377; McKnett v St. Louis & San Francisco R. Co., 292 US 230; Howlett v Rose, 496 US 356; Bradley v County of Albany, 161 AD2d 1050; Mann v Alvarez, 242 AD2d 318; Cooper Industries, Inc. v Leatherman Tool Group, Inc., 532 US 424.) TV Correction Law § 24 violates the Supremacy Clause because it offends principles of federalism by ousting the state courts from a significant area of federal constitutional adjudication. (Immuno AG. v Moor-Jankowski, 77 NY2d 235; Marbury v Madison, 1 Cranch [5 US] 137.) V If Correction Law § 24 is interpreted as the Legislature intended—to simply indemnify the New York State Department of Correctional Services employees—then the statute need not be struck as unconstitutional. (People v Dietze, 75 NY2d 47; People v Barber, 289 NY 378; Brown v Coughlin, 869 F Supp 196; Matter of Burrows v Board of Assessors for Town of Chatham, 98 AD2d 250.)
   OPINION OF THE COURT

Graffeo, J.

Pursuant to Correction Law § 24, New York courts lack jurisdiction under state or federal law to entertain civil actions seeking money damages against correction officers. The issue in this case is whether section 24 violates the Supremacy Clause of the United States Constitution because state courts cannot adjudicate federal 42 USC § 1983 causes of action alleging violations of civil rights. We hold that the statute is not unconstitutional.

I

Plaintiff Keith Haywood was sentenced as a second violent felony offender to a 15-to-30-year term of imprisonment after being convicted in 1990 of escape in the first degree and eight counts of robbery in the first degree. While incarcerated at the Attica Correctional Facility, plaintiff was the subject of two misbehavior reports in June 2003, one for assaulting a correction officer and the other for failing a urinalysis test. After separate administrative hearings, plaintiff was found guilty of both disciplinary charges. About a year later, another misbehavior report was issued charging plaintiff with improper mail solicitation. A hearing officer determined that plaintiff was guilty of that charge.

In the aftermath of these disciplinary findings, plaintiff commenced two unrelated, pro se civil actions in state Supreme Court premised on 42 USC § 1983 against employees of the state Department of Correctional Services (DOCS). The first complaint alleged that defendant Curtis Drown, the DOCS hearing officer who found plaintiff guilty of improper mail solicitation, failed to conduct a fair and impartial hearing, that his determination was based on insufficient evidence and that the penalty imposed was intended to censor plaintiff in violation of the First Amendment. Asserting that his federal civil rights had been impaired, plaintiff sought expungement of the misbehavior charge, punitive damages and attorneys’ fees under 42 USC § 1983.

Plaintiff’s second lawsuit was filed against defendant Pat Smith, a DOCS hearing officer, two correction officers and two of their superior officers. According to plaintiff, he had been grabbed from behind without justification by one of the correction officers and sustained a “minor injury to his left pinkie finger.” He claimed that the correction officer involved in the incident had conspired with his superiors to fabricate the facts set forth in his June 2003 misbehavior report. Plaintiff further alleged that the urinalysis test conducted in June 2003 had been tampered with by DOCS employees. The complaint, relying on 42 USC § 1983, accused defendants of conspiring to violate plaintiffs federal civil rights by assaulting him without cause, creating a false misbehavior report, tampering with his urinalysis test and denying him a fair and impartial hearing.3

The defendants in both actions, represented by the Office of the Attorney General pursuant to Public Officers Law § 17, moved to dismiss the complaints on the ground that plaintiffs claims—both state and federal—were barred by Correction Law § 24. This statute provides, in pertinent part:

“1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department [of correctional services], in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
“2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state.”

Supreme Court dismissed both complaints on this statutory basis, citing Woodward v State of New York (23 AD3d 852 [3d Dept 2005], Iv dismissed 6 NY3d 807 [2006]). The Appellate Division affirmed, concluding that section 24 did not violate the Supremacy Clause of the United States Constitution. Plaintiff appeals as of right and we now affirm.

II

Plaintiff contends that when Congress enacted 42 USC § 1983, it imposed a national policy that was intended to allow persons who are injured by others acting under color of law to seek judicial redress. He claims that by prohibiting section 1983 actions for money damages, Correction Law § 24 impermissibly discriminates against the federal cause of action contrary to the purpose of the Supremacy Clause. Defendants submit that there is no constitutional violation because the states are free to limit the subject matter jurisdiction of their courts. They maintain that section 24 treats all state and federal monetary claims identically since none can be brought against a correction officer personally and, therefore, section 24 does not discriminate against a federal cause of action in favor of a state cause of action.

The Supremacy Clause declares that the

“Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (US Const art VI [2]).

In the event of a conflict between federal and state law, the Supremacy Clause preempts operation of state law because when Congress adopts an act it speaks “ ‘for all the people and all the States, and thereby established] a policy for all. That policy is as much the policy of [the State] as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State’ ” (Howlett v Rose, 496 US 356, 371 [1990], quoting Mondou v New York, N.H. & H.R. Co., 223 US 1, 57 [1912]; see e.g. Testa v Katt, 330 US 386, 393 [1947]). Thus, under the Supremacy Clause, “[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law” (Felder v Casey, 487 US 131, 138 [1988] [internal quotation marks omitted]).

The alleged conflict between federal and state law in this case arises from the fact that, although a claim based on 42 USC § 1983 for monetary damages against government officials in their personal capacity can generally be asserted in a New York court (see generally Will v Michigan Dept. of State Police, 491 US 58, 66 [1989]), Correction Law § 24 restricts a state court from exercising jurisdiction over such a cause of action if it involves DOCS employees. At first glance, this prohibition appears questionable under the Supremacy Clause since the United States Supreme Court has cautioned that “[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law” and that a “construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise” (Martinez v California, 444 US 277, 284 n 8 [1980] [internal quotation marks omitted]).

Upon closer scrutiny, however, the Supremacy Clause imposes no constitutional impediment to the operation of Correction Law § 24. The Supremacy Clause gives states the power to deny enforcement of a federal right if they have a “ ‘valid excuse’ ” for doing so (Howlett, 496 US at 369, quoting Douglas v New York, N. H. & H. R. Co., 279 US 377, 388 [1929]). One permissible exception is when a state court lacks jurisdiction due to a “neutral state rule regarding the administration of the courts” (Howlett, 496 US at 372). The Supreme Court has explained that states “have great latitude to establish the structure and jurisdiction of their own courts” and that Congress must “take[ ] the state courts as it finds them” (id. [internal quotation marks omitted]; see also Brown v Gerdes, 321 US 178, 189 [1944, Frankfurter, J., concurring] [“(t)he Constitution does not require New York to give jurisdiction to its courts against its will”]; National Private Truck Council, Inc. v Oklahoma Tax Comm’n, 515 US 582, 587 n 4 [1995]).

A corollary to this principle is that a state rule will be deemed “neutral” and “valid” if it does not discriminate against federal claims in favor of analogous state claims (see McKnett v St. Louis & San Francisco R. Co., 292 US 230, 233-234 [1934]). In other words, if the same type of claim, “arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim” (Martinez v California, 444 US at 283-284 n 7). Ultimately, what the Supremacy Clause prohibits is refusal by a state court to entertain a suit for the sole reason that the cause of action arises under federal law (see Howlett, 496 US at 373, citing McKnett, 292 US at 233-234; Murnan v Wabash Ry. Co., 246 NY 244, 247 [1927]).

Thus, the policy underlying the Supremacy Clause is to maintain an equilibrium between state and federal causes of action: if a state court opens its doors to a state cause of action, it must also allow related federal claims to be heard; but if the state does not hear a particular state claim, it may also decline to consider related federal causes of action in its state courts (see generally Missouri ex rel. Southern R. Co. v Mayfield, 340 US 1, 4 [1950]). As a result, if a state permits a litigant to assert a state cause of action, it cannot use a sovereign immunity defense to defeat a section 1983 action premised on the same offending conduct (see Howlett, 496 US at 379-381). But if a state does not extend jurisdiction to its courts to litigate a certain type of claim, it may deprive those courts of jurisdiction over a related federal claim. In that situation, there is no Supremacy Clause violation because there is no discrimination against the federal claim in favor of similar state claims (see e.g. McKnett, 292 US at 233-234). And it follows that if the jurisdiction of a state court does not embrace a certain claim, a litigant cannot evade that rule by raising the same state claim in federal court under the doctrine of pendent jurisdiction (see Baker v Coughlin, 77 F3d 12, 15 [2d Cir 1996]). The equality requirement of the Supremacy Clause is satisfied in each of these situations because litigants stand on the same footing—regardless of whether they choose to invoke the authority of a state or federal court—and there is no incentive to engage in the repudiated practice of forum shopping that “frequently and predictably produce[s] different outcomes in federal civil rights litigation based solely on whether that litigation takes place in state or federal court” (Felder v Casey, 487 US at 141).

Applying these precepts, we cannot say that Correction Law § 24 violates the Supremacy Clause. The statute, by emphasizing that “[n]o civil action shall be brought in any court of the state,” creates a neutral jurisdictional barrier to all claims— state and federal—for monetary damages in a state court against any correction officer in his or her personal capacity for actions within the scope of employment. Section 24, therefore, does not discriminate against section 1983 actions “ ‘solely because the suit is brought under a federal law’ ” (Howlett, 496 US at 373, quoting McKnett, 292 US at 233-234; see Murnan v Wabash Ry. Co., 246 NY at 247)—it applies with equal force to all state and federal claims based on the identity of the defendant and the alleged conduct at issue (see Woodward v State of New York, 23 AD3d at 854; Cepeda v Coughlin, 128 AD2d 995, 997 [3d Dept 1987], Iv denied 70 NY2d 602 [1987]; cf. Meehan v Illinois Power Co., 347 Ill App 3d 761, 767, 808 NE2d 555, 562 [App Ct 2004] [no Supremacy Clause violation regarding refusal to permit claims based on federal age discrimination statute because “(a) 11 cases involving age discrimination, whether based on federal law or state law, are barred from Illinois circuit courts”], Iv denied 211 Ill 2d 582, 823 NE2d 967 [2004]). Put simply, because Correction Law § 24 does not treat section 1983 claims differently than it treats related state law causes of action, the Supremacy Clause is not offended.

Nor does the fact that a plaintiff can sue the state directly in the Court of Claims alter our analysis. Ordinarily, a state cannot be sued under 42 USC § 1983 because states are not considered to be “persons” within the purview of the federal statute (see Will v Michigan Dept. of State Police, 491 US at 65). Although states are excluded from section 1983 liability, the New York Legislature has recognized that the State of New York is, in effect, the real party in interest when there is a challenge to a correction officer’s alleged conduct arising from the discharge of official duties. As a result, the state provides representation and indemnification for correction officers sued for conduct occurring within the scope of employment (see Public Officers Law § 17 [2], [3]). Section 24 (2) further reflects this assumption of responsibility by allowing for the recovery of certain damages against the state in the Court of Claims. Correction Law § 24 therefore creates an exclusive forum for plaintiffs seeking redress of claims against the state—the Court of Claims—despite the absence of jurisdiction in state courts to entertain claims of civil rights violations against those employees directly. By restricting the forum for a certain type of claim to a particular state court, the Legislature did nothing more than exercise its prerogative to establish the subject matter jurisdiction of state courts in a manner consistent with New York’s conditional waiver of sovereign immunity, which does not allow civil rights claims to proceed against the state in Supreme Court.

In our view, New York does not discriminate against section 1983 claims by allowing state, but not federal, actions involving DOCS employees to be adjudicated in the Court of Claims since it was Congress that decided to exempt the states as responsible parties from the purview of the federal statute. Furthermore, federal law acknowledges that states can be sued by individuals only in state courts unless sovereign immunity is waived or abrogated (see US Const Amend 11; Seminole Tribe of Fla. v Florida, 517 US 44, 54 [1996]). Moreover, litigants like plaintiff can use the federal courts to pursue section 1983 claims against individual defendants and seek all of the rights and remedies available under the federal act, although a section 1983 claim brought against a correction officer in federal court cannot raise analogous, jurisdictionally barred state law claims (see Baker v Coughlin, 77 F3d at 15). Thus, when Correction Law § 24 applies, New York courts necessarily adjudicate only state claims brought against the state and federal courts adjudicate only federal causes of action brought against individuals. In the end, New York does not discriminate against section 1983 actions in favor of analogous state law claims because Correction Law § 24 removes subject matter jurisdiction over any cause of action— state or federal—for money damages in state Supreme Court for conduct by DOCS employees. Consequently, section 24 does not violate the Supremacy Clause.

Accordingly, the orders of the Appellate Division should be affirmed, without costs.

Jones, J. (dissenting).

The question before this Court is whether Correction Law § 24 violates the Supremacy Clause insofar as it bars litigants from bringing 42 USC § 1983 claims for money damages in state court against DOCS employees for actions committed within the scope of their employment. As interpreted by the majority, section 24 frustrates the purpose of, and is inconsistent with, section 1983. Specifically, section 24 (1) burdens the litigation of section 1983 actions by preventing state courts from adjudicating claims for money damages—even where such courts have jurisdiction over the parties and the type of claim brought—while, at the same time, allowing the court to adjudicate state law actions involving the same conduct by DOCS employees; and (2) immunizes a select group of state employees from section 1983 damages claims where other state employees are not similarly immunized. The majority and the State argue, however, that state courts can decline to exercise their concurrent jurisdiction over section 1983 money damages claims against DOCS employees because Correction Law § 24 affords New York State a “valid excuse” (i.e., a neutral rule of judicial administration limiting subject matter jurisdiction) for doing so. Contrary to the majority’s conclusion, section 24 cannot withstand a challenge under the Supremacy Clause. Accordingly, I dissent and would reverse the orders of the Appellate Division, reinstate plaintiffs claims and remand both actions to Supreme Court for further proceedings.

I.

Correction Law § 24 (entitled “Civil actions against [DOCS] personnel”) states:

“1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
“2. Any [such] claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state” (emphasis added).

We have stated that the purpose of section 24 is to ensure that DOCS employees, when acting within the scope of employment, freely perform their dangerous duties of maintaining safety and security within correctional facilities without fear of being subjected to voluminous, vexatious and, in many cases, merit-less suits brought by prisoners and being held personally liable should a prisoner prevail (see Arteaga v State of New York, 72 NY2d 212, 219 [1988]).

The majority opinion provides a detailed description of plaintiffs present claims, and several previous ones (see majority op at 484-485), apparently to suggest that the claims are frivolous, which they may well be. I recognize that the problem of baseless lawsuits by prisoners against corrections officers is a serious one; Congress, however, enacted section 1983 to deal with an even more serious problem—i.e., violations of citizens’ rights by those acting under the color of state law.

Section 1983 is the current version of section 1 of the Civil Rights Act of 1871, one of the post-Civil War Reconstruction-Era civil rights statutes Congress enacted. Section 1983 states:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territoiy or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress” (emphasis added).

Thus, section 1983 permits an individual deprived of his or her federal civil rights by person(s) acting under color of state law (i.e., government officials) to bring a civil suit against the state actor(s), in their personal capacity, for compensatory relief. Moreover, the Supreme Court stated that section 1983 was meant to create

“a species of liability in favor of persons deprived of their federal civil rights by those wielding state authority. . . . ‘[T]he central objective of the Reconstruction-Era civil rights statutes ... is to ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief.’ Thus, [section] 1983 provides ‘a uniquely federal remedy against incursions . . . upon rights secured by the Constitution and laws of the Nation,’ and is to be accorded ‘a sweep as broad as its language. ’
“Any assessment of the applicability of a state law to federal civil rights litigation, therefore, must be made in light of the purpose and nature of the federal right. This is so whether the question of state-law applicability arises in [section] 1983 litigation brought in state courts, which possess concurrent jurisdiction over such actions, or in federal-court litigation” (Felder v Casey, 487 US 131, 139 [1988] [emphasis added and citations omitted]).

Bottom line, Congress decided that the threat of abuse of citizens by those acting under color of state law was real enough to justify creating the section 1983 cause of action—even though many section 1983 cases lack merit. Accordingly, the State of New York is not free to decide that DOCS employees must be immune from such suits. In any event, the issue here is not whether plaintiff has a right to bring these claims—he clearly does—but whether state courts, as well as federal courts, must bear the burden of adjudicating them. In my view, state courts cannot selectively escape this responsibility. However, over the years, New York State courts have (see Steven H. Steinglass, an Introduction to State Court Section 1983 Litigation, in Sword and Shield, A Practical Approach to Section 1983 Litigation, at 153 [ABA 3d ed 2006] [stating that “(t)he most flagrant example of a state court system selectively excluding (section) 1983 cases is the refusal of the New York courts to entertain (section) 1983 actions against state correctional officials”]).

Although the State of New York generally has the freedom to fix the rules of subject matter jurisdiction its courts must follow, it does not have the authority to enact a statute that violates or is inconsistent with federal law—for example, a statute immunizing “an official from liability for injuries compensable under federal law” (Howlett v Rose, 496 US 356, 361 [1990], citing Martinez v California, 444 US 277 [1980])—and simply refer to the statute as a neutral rule of subject matter jurisdiction that serves as a valid excuse for Supremacy Clause purposes. In enacting Correction Law § 24, however, the State Legislature has put forth a statute immunizing official conduct otherwise actionable under federal law. Section 24 is, therefore, inconsistent with section 1983 and violative of the Supremacy Clause.

II.

Under the Supremacy Clause (US Const art VI [2]), federal law is “the supreme Law of the Land.” The Supreme Court explained:

“[flederal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum—although both might well be true—but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws the supreme Law of the Land, and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. . . . The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent” (Howlett, 496 US at 367 [citations and internal quotation marks omitted]).

Federal and state courts, therefore, have concurrent jurisdiction over federal actions and state courts have a duty to enforce federal law to the same extent as federal courts except where a valid excuse to the exercise of such jurisdiction exists. Discussing this “valid excuse” exception, the Supreme Court articulated three corollaries:

“1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of valid excuse. . . . The existence of the jurisdiction creates an implication of duty to exercise it. . . .
“2. An excuse that is inconsistent with or violates federal law is not a valid excuse ....
“3. When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. . . . The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear [a] case in which the federal claim is presented. The general rule ... is that federal law takes the state courts as it finds them. . . . The States thus have great latitude to establish the structure and jurisdiction of their own courts. . . . In addition, States may apply their own neutral procedural rules to federal claims, unless those rules are [preempted] by federal law” (id. at 369-372 [citations and internal quotation marks omitted]).

Accordingly, a state may enact legislation limiting its subject matter jurisdiction over claims otherwise within its purview as long as the legislation is supported by a valid excuse. If a state applies a neutral rule of judicial administration, the state has a valid excuse for refusing to provide a court of competent jurisdiction to hear such claims. For the reasons set forth below, Correction Law § 24 is not a valid excuse.

First, the Supreme Court has not deemed the type of “jurisdictional” rule at bar—the effect of which is that Section 1983 damages claims against one group of state employees are barred while identical claims against other state employees are allowed—to be a valid excuse. There have only been three cases in which the Supreme Court has held that a valid excuse exists for a state court’s refusal to entertain a federal claim. These cases involved neutral rules of judicial administration—all markedly different from section 24—where the state court dismissed the federal claim: (1) on forum non conveniens grounds; (2) because the parties were nonresidents of the forum state; or (3) because the federal claim arose outside of the state’s territorial jurisdiction (see Howlett, 496 US at 374-375). Moreover, in determining what would be an acceptable valid excuse, the Supreme Court cautioned that “[t]he fact that a rule is denominated jurisdictional does not provide a court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect” (id. at 381). As will be made clear below, Correction Law § 24 does neither.

Second, the majority’s view that section 24 does not discriminate against section 1983 damages claims is based, in my view, on an unduly narrow reading of United States Supreme Court precedent. In Martinez, the Supreme Court held that a California statute immunizing government conduct was not controlling in section 1983 litigation, even where such litigation took place in state court, because the application of the State’s immunity law would thwart the remedial purpose of section 1983 (444 US at 284). In so holding, the Court observed that “where the same type of claim, if arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim” (id. at 283 n 7).

At issue in Felder was a Wisconsin notice-of-claim statute, which effectively shortened the statute of limitations for those seeking to assert federal civil rights claims. The Supreme Court held that the Wisconsin statute was preempted to the extent that it applied to section 1983 claims because the statute conflicted in both purpose and effect with the remedial objectives of section 1983, and its application to a section 1983 claim brought in state court could yield a different outcome than if it were brought in federal court (487 US at 138, 152). Although the statute in Felder did not purport to limit the jurisdiction of Wisconsin courts, if it had, the Court would have reached the same result (see Howlett, 496 US at 382-383 [stating that “(t)he force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word ‘jurisdiction’ ”]).

Moreover, in Howlett, the Supreme Court considered whether a Florida statute in which the State waived sovereign immunity from state tort actions—but not from section 1983 claims— against state defendants was a jurisdictional limitation on the power of the Florida state courts. The Court held that the statute violated the Supremacy Clause because the state courts entertained similar state claims not subject to the sovereign immunity defense; as such, section 1983 claims could not be precluded (see Howlett, 496 US at 375). Significantly, the Court noted that once a state opens its courts to hear section 1983 actions, it may not selectively exclude certain section 1983 actions by denominating state policies as jurisdictional (id. at 381).

In light of the foregoing, the majority’s nondiscrimination and “equality requirement” arguments are unavailing. I acknowledge that Congress cannot require New York State to create a court of competent jurisdiction to entertain section 1983 claims. Here, however, one such court exists. New York State supreme courts are courts of general (i.e., “original, unlimited and unqualified”) jurisdiction (NY Const, art VI, § 7; Kagen v Kagen, 21 NY2d 532, 537 [1968]) that already hear and adjudicate state law claims for damages and all section 1983 claims—including claims for declaratory and injunctive relief and claims where money damages are sought—against state employees (except those employed by DOCS). Since the same type of state law claim—and federal law claim for that matter—is enforceable in state supreme court, the State cannot selectively refuse to enforce the federal claim.

Further, as noted by the majority, the State Legislature determined that the State, and not DOCS employees, should be liable for the wrongful conduct committed within the scope of employment (see Correction Law § 24 [2]). This policy judgment logically flows from the above-mentioned purpose of section 24. However, under the Supremacy Clause, “[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield” (Felder, 487 US at 138 [internal quotation marks omitted]). Thus, neither the State’s policy judgment nor the purpose underlying such judgment qualifies as a neutral rule of judicial administration.

Third, in resolving the issue at bar, the broad goals and objectives of section 1983, and for that matter its progenitor (the Civil Rights Act of 1871), must be taken into account. Specifically, this Court should determine whether

“the application of the [state statute] to § 1983 actions brought in state courts [is] consistent with the goals of the federal civil rights laws, or [whether] the enforcement of [the state statute] instead stand[s] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (id. [internal quotation marks omitted]).

Here, Correction Law § 24, which by its plain terms immunizes DOCS employees from liability for certain conduct actionable under section 1983, 6is inconsistent with section 1983’s remedial purposes in several important respects. For those litigants who bring their section 1983 claims in state court, section 24: (1) interferes with section 1983 by barring litigants from receiving compensatory relief directly from the individual state actor(s) who committed the actionable conduct; and (2) places significant obstacles in front of litigants seeking to secure a full recovery.

Additionally, a state may not extend its sovereign immunity and pass legislation immunizing “an official from liability for injuries compensable under federal law” (Howlett, 496 US at 360, citing Martinez). Comparing the statutes in Howlett and the case at bar makes clear that both states sought to cloak their officials in their own sovereign immunity. Put simply, under the statute in Howlett, the school board was “the state” and therefore immune. Here, damages suits based on the employees’ actions can only be brought “as a claim against the state” (Correction Law § 24 [2]). The result, in both cases, is that plaintiff’s only state-court remedy is a suit against the State, which, pursuant to the Eleventh Amendment of the Federal Constitution and for section 1983 purposes, is not a “person” that can be held liable under section 1983. Therefore, plaintiffs are left with no remedy in state court against those individuals who would be liable under section 1983. Given the goals and objectives of section 1983, Congress could not have envisioned such a result.

III.

In conclusion, I stress two points which make clear why the Appellate Division order should be reversed. First, if you strip away the veneer of the majority’s arguments, section 24—a statute which, on its face, precludes anyone, including other DOCS employees and prisoners, from bringing damages claims against DOCS personnel—is not a neutral jurisdictional barrier to a particular type of claim. In reality, section 24 functions as an immunity statute that allows state courts to selectively exclude prisoner suits for damages against DOCS personnel. Second, contrary to the majority’s view, section 24 simply does not fall under the category of what could be a “valid excuse” (i.e., section 24 does not reflect the concerns of power over the litigants and competence over subject matter). Here, the state supreme court has jurisdiction over the parties and, based on the State’s willingness to allow the adjudication of all section 1983 claims against other state employees, competence over the type of claim at bar. Further, plaintiffs claims arose within the State’s territorial jurisdiction. Based on the foregoing, Correction Law § 24 does not afford a valid excuse to selectively exclude section 1983 damages suits against DOCS personnel and is, therefore, constitutionally infirm under the Supremacy Clause.

Chief Judge Kaye and Judges Ciparick and Read concur with Judge Graffeo; Judge Jones dissents and votes to reverse in a separate opinion in which Judges Smith and Pigott concur.

Orders affirmed, without costs.

      . See People v Haywood, 184 AD2d 450, 450 (1st Dept 1992), Iv denied 80 NY2d 904 (1992).

      . Plaintiff has also filed other pro se complaints during his term of confinement (see e.g. Kollar v Conagra Foods Retail Prods. Co., No. 07 CV 0130, 2007 WL 1371105 [WD NY 2007] [complaint regarding ingestion of allegedly tainted peanut butter]; Haywood v Republic Tobacco, Co., L.P., 2007 WL 1063004, *1 [WD NY 2005, No. 05-CV-842A] [complaint alleged exposure to second-hand cigarette smoke]; Haywood v Nabisco Inc., 2005 WL 3523467 [Sup Ct, NY County 2005] [complaint asserted that a “Chip’s Ahoy” cookie contained a penny that cracked his tooth]; Haywood v Koehler, 78 F3d 101, 103 [2d Cir 1996] [complaint of use of excessive force]; Haywood v Hudson, 1994 WL 36388, *1, 1994 US Dist LEXIS 877, *1 [ED NY 1994, CV-90-3287] [complaint of use of excessive force]).

      . This federal statute provides that
      “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”

      . The complaint also asserted a second cause of action based on an alleged violation of plaintiffs state constitutional rights.

      . Plaintiff’s alternative claim, that the statute merely indemnifies correction officers, was not raised in Supreme Court and is therefore unpreserved.

      . Section 24 operates without regard to the identity of the plaintiff, such as when a correction officer seeks to sue his superior officers for civil rights violations (see Woodward v State of New York, 23 AD3d at 853).

      . Cases such as Howlett and Felder, relied upon by plaintiff and the dissent, are distinguishable from this case. In Howlett, for example, the state provided an immunity defense to the section 1983 action that did not apply to related state law claims and that would not have been available if the action had been commenced in federal court (see 496 US at 359, 364). Similarly, in Felder, state law imposed a notice of claim requirement on section 1983 claims that would not apply if the action had been initiated in federal court (see 487 US at 141). In both cases, the state laws upset the equilibrium the Supremacy Clause was designed to maintain and were therefore unconstitutional.

      . New York’s waiver of sovereign immunity is conditioned on submission to the exclusive jurisdiction of the Court of Claims (see NY Const, art VI, § 9; Court of Claims Act § 8).

      . The purpose of the Civil Rights Act of 1871 was to address the lawlessness in the southern states after the Civil War (see Cong Globe, 42nd Cong, 1st Sess, at 236 [1871]) and to enforce the provisions of the Fourteenth Amendment (see Monroe v Pape, 365 US 167, 171 [1961], overruled by Monell v New York City Dept. of Social Servs., 436 US 658 [1978] [Monroe was overruled insofar as it held that local governments are wholly immune from suit under section 1983]). As the Supreme Court stated:
      “The [Act] grew out of a message sent to Congress by President Grant on March 23, 1871, reading:
      “ ‘A condition of affairs now exists in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate. That the power to correct these evils is beyond the control of State authorities I do not doubt; that the power of the Executive of the United States, acting within the limits of existing laws, is sufficient for present emergencies is not clear. Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States. . .
      “[The legislation, which was enacted on April 20, 1871, had three main aims.]

        “First, it might. . . override certain kinds of state laws. . . . “Second, it provided a remedy where state law was inadequate. . . .
      “The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice. . . .
      “The debates are replete with references to the lawless conditions existing in the South in 1871. ... It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this ‘force bill.’ . . .
      “[T]he remedy created was . . . against those who representing a State in some capacity were unable or unwilling to enforce a state law” (Monroe, 365 US at 172-176 [footnotes omitted]).

      . See Missouri ex rel. Southern R. Co. v Mayfield, 340 US 1, 4 (1950) (holding that state court could apply the forum non conveniens doctrine to bar adjudication of action under Federal Employer’s Liability Act [FELA] if the state “enforce[d] its policy impartially so as not to involve a discrimination against [FELA] suits” [citation omitted]).

      . See Douglas v New York, N. H. & H. R. Co., 279 US 377 (1929) (holding that state statute properly permitted discretionary dismissal of both federal and state claims where neither party was a resident of the forum state).

      . See Herb v Pitcairn, 324 US 117, 123 (1945).

      . See Baker v Coughlin, 77 F3d 12, 15 (2d Cir 1996) (holding that “by its plain terms, [section] 24 governs the substantive rights of corrections officers by conferring upon them an immunity from liability for activities that fall within the scope of the statute”).

      . Under section 24, a litigant can bring section 1983 actions for declaratory and injunctive relief in state court. However, if the litigant is to have a full recovery, as contemplated by section 1983, he or she must seek money damages in federal court. Thus, to obtain a full recovery, a litigant has to split claims and bring two separate actions in two separate jurisdictions. This places an onerous burden on litigants. (See also Woodward v State of New York, 23 AD3d 852, 857 [3d Dept 2005, Kane, J., dissenting].)

      . By this requirement, section 24 has redefined and limited the section 1983 cause of action, i.e., it eliminates a plaintiffs federal right to sue a DOCS employee, in his or her personal capacity, for damages in state court.

      . See Howlett, 496 US at 365 (stating “[a]s we held last Term in Will v. Michigan Dept. of State Police, 491 U. S. 58 [1989], an entity with Eleventh Amendment immunity is not a ‘person’ within the meaning of [section] 1983”).


source: Caselaw Access Project

author: CIPARICK, J.

license: Public Domain

text:
    [881 NE2d 830, 851 NYS2d 381]
    Rachel Ehrenfeld, Appellant, v Khalid Salim Bin Mahfouz, Respondent.
    Argued November 15, 2007;
    decided December 20, 2007

      POINTS OF COUNSEL

      Kornstein Veisz Wexler & Pollard, LLP, New York City (Daniel J. Kornstein, Mikaela A. McDermott, Mark Platt, Ina R. Bort, Catherine C. Montjar, David T. McTaggart and Amy C. Gross of counsel), for appellant.
    I. Since Khalid Salim Bin Mahfouz’s New York contacts, including a chilling effect, are sufficient, purposeful, affect people and events in New York, and make it foreseeable that he would be sued there, Bin Mahfouz “transacts business” in New York. (Kramer v Vogl, 17 NY2d 27; Lynch v Austin, 96 AD2d 196; Citigroup Inc. v City Holding Co., 97 F Supp 2d 549; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, cert denied sub nom. Estwing Mfg. Co. v Singer, 382 US 905; Padilla v Rumsfeld, 352 F3d 695, 542 US 426; Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65; Opticare Acquisition Corp. v Castillo, 25 AD3d 238; Hanson v Denckla, 357 US 235; George Reiner & Co. v Schwartz, 41 NY2d 648; Kreutter v McFadden Oil Corp., 71 NY2d 460.) II. Since Yahoo! Inc. v La Ligue Contre Le Racisme Et L’Antisemitsme (433 F3d 1199 [2006]) provides persuasive authority based on even less compelling facts, it supports the exercise of jurisdiction here. (Calder v Jones, 465 US 783; Kreutter v McFadden Oil Corp., 71 NY2d 460; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65; Talbot v Johnson Newspaper Corp., 71 NY2d 827; Best Van Lines, Inc. v Walker, 490 F3d 239; Johnson v Ward, 4 NY3d 516; International Shoe Co. v Washington, 326 US 310; McGee v International Life Ins. Co., 355 US 220; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443.) III. Since Dr. Ehrenfeld’s claim stems directly from Khalid Salim Bin Mahfouz’s intimidation of her in New York, it “arises from” Bin Mahfouz’s transaction of business in New York. (McGowan v Smith, 52 NY2d 268; Kreutter v McFadden Oil Corp., 71 NY2d 460; Johnson v Ward, 4 NY3d 516.) IV Since the exercise of jurisdiction here is fair and grounded in precedent and public policy, the Court should answer the certified question in the affirmative. (Best Van Lines, Inc. v Walker, 490 F3d 239; New York Times Co. v Sullivan, 376 US 254; Immuno AG. v Moor-Jankowski, 77 NY2d 235, 500 US 954; Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Hotchner v Castillo-Puche, 551 F2d 910, 434 US 834.)

      Jones Day (Timothy J. Finn and Stephen J. Brogan, of the District of Columbia bar, admitted pro hac vice, and Christian G. Vergonis of counsel), and Bonner, Kiernan, Trebach & Crociata, Washington, D.C. (Michael Nussbaum of counsel), for respondent.
    I. CPLR 302 (a) (1) does not authorize personal jurisdiction over a nondomiciliary whose only acts within New York were incidental to a foreign lawsuit against a New York defendant. (Ferrante Equip. Co. v Lasker-Goldman Corp., 26 NY2d 280; A. Millner Co. v Noudar, Lda., 24 AD2d 326; Johnson v Ward, 6 AD3d 286, 4 NY3d 516; Crystal Lake Camp Corp. v Silver, 63 Misc 2d 562; Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65; Liberatore v Calvino, 293 AD2d 217; ISI Brands, Inc. v KCC Intl., Inc., 458 F Supp 2d 81; Rescuecom Corp. v Hyams, 477 F Supp 2d 522; Hartford Fire Ins. Co. v California, 509 US 764; Padilla v Rumsfeld, 352 F3d 695, 542 US 426.) II. Dr. Ehrenfeld’s arguments rely on the wrong legal standard and should be directed to the Legislature. (Ferrante Equip. Co. v Lasker-Goldman Corp., 26 NY2d 280; Fantis Foods v Standard Importing Co., 49 NY2d 317; Yahoo! Inc. v La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F3d 1199; Opticare Acquisition Corp. v Castillo, 25 AD3d 238; Matter of Sayeh R., 91 NY2d 306; Talbot v Johnson Newspaper Corp., 123 AD2d 147; Porter v LSB Indus., 192 AD2d 205; Calder v Jones, 465 US 783; McGowan v Smith, 52 NY2d 268; Hermann v Sharon Hosp., 135 AD2d 682.)

      Covington & Burling LLP, New York City (Jason P. Criss of counsel), Weil, Gotschal & Manges LLP (R. Bruce Rich and Jonathan Bloom of counsel), Jan Friedman Constantine, Fletcher, Heald & Hildreth, PLC, Arlington Virginia (Kevin M. Goldberg of counsel), Angela Mills Wade, Brussels, Belgium, Kurt A. Wimmer, McLean, Virginia, Patrick D. Maines, Arlington, Virginia, Richard T. Kaplar, René P. Milam, Vienna, Virginia, Lucy A. Dalglish, Arlington, Virginia, Gregg P. Leslie, Matthew B. Pollack, David A. Zapolsky, Seattle, Washington, Wiley Rein & Fielding, Washington, D.C. (Kathleen A. Kirby of counsel), Kai Falkenberg, New York City, Dow Lohnes PLLC,
      Washington, D.C. (Jonathan D. Hart of counsel), and Sabin, Bermant & Gould LLP, New York City (Neil M. Rosenhouse of counsel), for Advance Publications, Inc. and others, amici curiae.
    I. The facts presented in this appeal powerfully illustrate the danger libel tourism poses to free expression in New York. (Bachchan v India Abroad Publs., 154 Misc 2d 228; Matusevitch v Telnikoff, 877 F Supp 1, 159 F3d 636.) II. The Court of Appeals should adopt the limited holding advocated by Dr. Ehrenfeld. (Kreutter v McFadden Oil Corp., 71 NY2d 460; Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65; PDK Labs, Inc. v Friedlander, 103 F3d 1105; McKee Elec. Co. v RaulandBorg Corp., 20 NY2d 377; Burger King Corp. v Rudzewicz, 471 US 462; Matter of Sayeh R., 91 NY2d 306; McGowan v Smith, 52 NY2d 268; Legros v Irving, 38 AD2d 53; Best Van Lines, Inc. v Walker, 490 F3d 239.)
   OPINION OF THE COURT

CIPARICK, J.

The United States Court of Appeals for the Second Circuit has certified to us the question of whether CPLR 302 (a) (1) confers personal jurisdiction over a person “(1) who sued a New York resident in a non-U.S. jurisdiction; and (2) whose contacts with New York stemmed from the foreign lawsuit and whose success in the foreign suit resulted in acts that must be performed by the subject of the suit in New York” (489 F3d 542, 545 [2007]). Because these contacts do not constitute the transaction of business in this state, we conclude that CPLR 302 (a) (1) does not confer jurisdiction.

I.

Plaintiff Rachel Ehrenfeld is an author whose writing focuses on international terrorism. In 2003, Chicago-based Bonus Books published her book, Funding Evil: How Terrorism Is Financed— and How to Stop It. In that book, plaintiff asserts that defendant, Khalid Salim Bin Mahfouz—a Saudi Arabian businessman, financier and former head of the National Commercial Bank of Saudi Arabia—and his family have provided direct and indirect monetary support to al Qaeda and other “Islamist terror groups.” Funding Evil was published in the United States. However, 23 copies were purchased in the United Kingdom via the Internet and a chapter of the book, accessible from the ABCNews.com Web site, was also available in that country.

Defendant maintains that plaintiffs claims regarding his ties to terrorism are false. On January 23, 2004, defendant’s English counsel wrote to plaintiff and sought to have her: (i) promise the “High Court in England” that she would refrain from repeating similar allegations, (ii) destroy or deliver to him all copies of Funding Evil, (iii) issue a letter of apology (to be published at plaintiffs expense), (iv) make a charitable donation and (v) pay his legal costs in exchange for defendant’s agreement to not bring a defamation action against her. When plaintiff did not accept this offer, defendant sued her, seeking damages and injunctive relief under the English Defamation Act of 1996, in the High Court of Justice, Queens Bench Division, in London.

Pursuant to an order of the English court, defendant served papers upon plaintiff at her New York City apartment on four occasions: October 22, 2004, December 30, 2004, March 3, 2005 and May 19, 2005. Plaintiff alleges that the process server who visited her on March 3 threatened her, stating: “You had better respond, Sheikh bin Mahfouz is a very important person, and you ought to take very good care of yourself.” In addition to serving litigation papers, defendant’s English lawyers contacted plaintiff at her home in New York via mail and e-mail. These communications—received on September 22, 2004, December 9, 2004, April 26, 2005, April 27, 2005, May 2, 2005 and May 9, 2005—all concerned the English action. By these letters and e-mails, defendant’s English counsel provided plaintiff with the claim in the English action, witness statements, documents supporting defendant’s alleged damages and court orders. For example, the December 9 letter advised plaintiff that pursuant to an injunction issued by the English court she was under a duty to prevent Funding Evil from “leak[ing] into the [English court’s] jursdiction,” “England and Wales,” and that if she failed to do so she could “be held in contempt of court.”

Plaintiff elected not to appear in the English action. 3She did so because of the cost of litigating in England, the procedural barriers facing a libel defendant under English law and her disagreement in principle with defendant’s alleged attempt to chill her speech in New York by suing in a claimant-friendly libel jurisdiction to which she lacked any tangible connection. On December 7, 2004, the English court entered a default judgment against plaintiff and Bonus Books, providing for an award of damages and enjoining the further publication of the allegedly defamatory statements in England and Wales. On May 3, 2005, the English court entered a second order declaring the allegedly defamatory statements false, setting damages owed to defendant and his sons at £10,000 each, requiring plaintiff and Bonus Books to publish an apology in accordance with section 9 (2) of England’s Defamation Act of 1996, mandating that the December 7 injunction “shall continue in full force and effect,” and awarding defendant his costs in prosecuting the English action. Defendant reported the contents of the May 3 order on his Web site (see Bin Mahfouz Information, http://www. binmahfouz,info/news_20050503.html [accessed Dec. 3, 2007]), which is accessible in New York.

Plaintiff filed suit against defendant in the United States District Court for the Southern District of New York. There, she sought a declaratory judgment that, under federal and New York law, defendant could not prevail on a libel claim against her based upon the statements at issue in the English action and that the December 7 default judgment is unenforceable in the United States and, particularly, in New York State. Defendant moved to dismiss, arguing that the court lacked subject matter and personal jurisdiction.

The district court held that it lacked personal jurisdiction under CPLR 302 (a) (1) because defendant’s communications to plaintiff in New York regarding the English action and his Web site posting, “however persistent, vexing or otherwise meant to coerce, do not appear to support any business objective” (2006 WL 1096816, *4, 2006 US Dist LEXIS 23423, *14). Further, the court concluded that plaintiffs reliance upon Yahoo! Inc. v La Ligue Contre Le Racisme Et L’Antisemitisme (433 F3d 1199 [9th Cir 2006, en banc]), which affirmed a finding of personal jurisdiction based upon facts similar to those here, was misplaced. This was so, said the district court, because the Ninth Circuit was interpreting California’s long-arm statute, which unlike CPLR 302 (a) (1), is “coextensive with Federal Due Process” standards for exercising personal jurisdiction (2006 WL 1096816, *5, 2006 US Dist LEXIS 23423, *19).

On appeal, the Second Circuit asked defendant whether he would commit to not seek enforcement of the English court’s orders in the United States. In a letter to the court, defendant “decline[d] to . . . waive . . . whatever rights he may have to seek enforcement of the damage award in a U.S. court.” On June 8, 2007, the Second Circuit certified to us the above-quoted question. We now answer that question in the negative, concluding that CPLR 302 (a) (1) does not confer in personam jurisdiction over defendant.

II.

At the outset, it is important to emphasize that we are called upon to decide a narrow issue. The Second Circuit has not asked us to opine upon the propriety of English libel law or its differences from its United States and, particularly, New York State counterparts. And we decline to do so. Plaintiff and her amici argue that this case is about “libel tourism,” a phenomenon that they variously describe as the use of libel judgments procured in jurisdictions with claimant-friendly libel laws—and little or no connection to the author or purported libelous material—to chill free speech in the United States. However pernicious the effect of this practice may be, our duty here is to determine whether defendant’s New York contacts establish a proper basis for jurisdiction under CPLR 302 (a) (l). It is to that inquiry to which we now turn.

Plaintiff claims that defendant has transacted business in New York because he purposefully projected himself into the state to further a “foreign litigation scheme” designed to chill her speech. Defendant counters that this alleged scheme consists of contacts that are insufficient bases for jurisdiction. He states that he has transacted no business here and that his communications and activities in New York were merely incidental to the prosecution of a foreign litigation. Because none of the contacts here establish that defendant purposefully availed himself of the privileges of and benefits of New York’s laws, we agree with defendant (compare e.g. Fischbarg v Doucet, 9 NY3d 375, 382 [2007] [decided today] [purposeful availment requires a “sustained and substantial transaction of business in New York,” such as the solicitation and establishment of a continuing attorney-client relationship]).

Under CPLR 302 (a) (1) “a court may exercise personal jurisdiction over any non-domiciliary,” such as defendant, “who in person or through an agent . . . transacts any business within the state” if the cause of action asserted arises out of that transaction. To determine what constitutes a transaction of business we have been guided—as was the Legislature in enacting CPLR 302 (a) (1)—by U.S. Supreme Court opinions delineating proper bases for personal jurisdiction under the Federal Due Process Clause (see e.g. Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 452, 458 [1965], citing, among other precedents, International Shoe Co. v Washington, 326 US 310, 316 [1945]). Thus, we have held that “[t]he overriding criterion” necessary to establish a transaction of business is “some act by which the defendant purposefully avails itself of the privilege of conducting activities within [New York]” (McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967], quoting Hanson v Denckla, 357 US 235, 253 [1958]; accord Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71 [2006]). When a defendant engages in purposeful activity here, personal jurisdiction is proper because it has “invok[ed] the benefits and protections of [our] laws” (George Reiner & Co. v Schwartz, 41 NY2d 648, 652 [1977] [citation omitted]; accord Matter of Sayeh R., 91 NY2d 306, 319 [1997] [“(R)espondent deliberately and affirmatively sought the protection of this State’s laws, and thereby (was) rendered . . . amenable to our general long-arm jurisdiction”]) and thus “should reasonably expect to defend its actions [ ]here” (Deutsche Bank, 7 NY3d at 71, quoting Kreutter v McFadden Oil Corp., 71 NY2d 460, 466 [1988]).

Here, none of defendant’s relevant New York contacts have invoked the privileges or protections of our State’s laws. Quite to the contrary, his communications in this state were intended to further his assertion of rights under the laws of England. As defendant points out—and plaintiff does not dispute—his prefiling demand letter and his service of documents were required under English procedural rules governing the prosecution of defamation actions. And in none of his letters to plaintiff did defendant seek to consummate a New York transaction or to invoke our State’s laws (compare e.g. Fischbarg, 9 NY3d at 382-383 [CPLR 302 (a) (1) jurisdiction proper because “defendants established a substantial ongoing professional commitment . . . governed by the laws of our state”]).

Accordingly, contrary to plaintiffs assertions, our decisions in Parke-Bernet Galleries v Franklyn (26 NY2d 13, 18 [1970] [defendant transacted business in New York by participating in and purchasing paintings from New York auctioneer via telephone]) and Sayeh R. (91 NY2d at 319 [long-arm jurisdiction proper because “(r)espondent has repeatedly invoked the aid and protection of our courts (and) . . . enlisted the aid of local police” to enforce a Florida court order]) do not support her position (see also e.g. Deutsche Bank, 7 NY3d at 72 [long-arm jurisdiction proper because “sophisticated institutional trader knowingly enter(ed) our state ... to negotiate and conclude a substantial transaction”]).

Moreover, plaintiffs reliance upon the Second Circuit’s decision in PDK Labs, Inc. v Friedlander (103 F3d 1105 [2d Cir 1997]) is misplaced. There, the defendant, a promoter of weight-loss products, engaged a New York attorney to contact a New York corporation regarding an alleged infringement of his patents (see id. at 1107). In the course of his communications with the corporation, the attorney not only threatened to sue under Georgia law, he also “ solicited] PDK’s investment in [the defendant’s] weight loss product” (id. at 1109). It was this “persistent campaign ... to secure PDK’s investment” that, the court held, “constitute[d] business transacted in New York under CPLR § 302 (a) (1)” (id.). By contrast in Beacon Enters., Inc. v Menzies (715 F2d 757 [2d Cir 1983]), the Second Circuit held that the defendant’s mailing of a “cease and desist” letter to the plaintiff in New York was not a sufficient predicate for long-arm jurisdiction (see id. at 766). The court reasoned that, “[i]t is difficult to characterize [a] letter alleging infringement in an unspecified locale and threatening litigation in an unspecified forum as an activity invoking the ‘benefits and protections’ of New York law” (id.). Confronted, as we are, with a demand letter sent by English solicitors requesting—among other things—“[a]n undertaking to the High Court in England” not to repeat plaintiffs alleged defamatory statements as well as defendant’s service of documents and other mailings related to the English action, we, too, conclude that the defendant has not purposefully availed himself of the laws of New York.

Plaintiff urges us, however, to hold that defendant’s refusal to waive whatever rights he may have to enforce the English judgment in New York, constitutes a purposeful availment of this state’s laws. Indeed, according to her, the “future New York contact” of potential enforcement is “crucial” to finding jurisdiction over defendant. This is so, she says, because that judgment could only be enforced here, where she resides and works, and where all her assets are located. In addition, plaintiff claims that the ongoing threat of enforcement in New York has led her to decline publishing certain articles and to attempt to conform her writing to the standards of English libel law. Plaintiff also asserts that the alleged chill caused by the English judgment has been felt by certain publishers who have accepted her work in the past, but decline to do so now for unspecified reasons, and by other authors engaged in the investigation of international terrorism whom she alleges must now tailor their writing to avoid foreign libel suits. Furthermore, plaintiff argues that the English judgment requires her to take action—issue an apology and prevent leakage of the allegedly defamatory statements into England and Wales—in New York. Because defendant purposefully filed the English action to cause these alleged New York effects, plaintiff argues that CPLR 302 (a) (1) jurisdiction is proper.

Our decision in Ferrante Equip. Co. v Lasker-Goldman Corp. (26 NY2d 280 [1970]) undercuts plaintiffs position. There, the appellant argued that “although respondent’s acts occurred in New Jersey, they had a substantial effect on the performance of [work in] New York and for that reason we should sustain jurisdiction under CPLR 302 [(a) (1)]” (id. at 285). We concluded, however, that we could not do so “because appellant has been unable to point to a single transaction of business by respondent in New York” (id. at 284). In so holding we adopted the Appellate Division’s reasoning that “[t]he mere receipt by a nonresident of a benefit or profit from a contract performed by others in New York is clearly not an act by the recipient in this State sufficient to confer jurisdiction under our long-arm statute” (id. at 285, quoting 31 AD2d 355, 356 [1st Dept 1969]). Here, as in Ferrante, the alleged effects of threatened enforcement of the English judgment may benefit defendant by chilling plaintiffs speech, but those effects do not arise from his invocation of the privileges and benefits of our State’s laws. Rather, they arise from an English remedy and plaintiffs unilateral activities in New York (see Ferrante, 26 NY2d at 285). As such, those effects do not form a proper basis for CPLR 302 (a) (1) jurisdiction.

III.

Finding little support in our precedents, plaintiff next asks us to adopt the holding of the Ninth Circuit in Yahoo! Inc. v La Ligue Contre Le Racisme Et L'Antisemitisme (433 F3d 1199 [2006]). The facts are, indeed, similar to those present here. In Yahoo!, two French civil rights groups obtained French court orders that required a California-based Internet service provider to prevent users of its French Web site from accessing certain Web pages associated with Nazism (see id. at 1202-1204). By the terms of those orders, Yahoo! was required to alter its servers, located in California, under threat of a substantial monetary penalty. Yahoo! then sued the French groups in federal court in California, seeking a declaratory judgment that the French orders were not enforceable or recognizable in the United States based, in part, upon their interference with Yahoo!’s First Amendment rights. Affirming the federal district court, a majority of the en banc panel ruled that exercising in personam jurisdiction over the French groups was proper.

The critical distinction between Yahoo! and the present case, however, is that the California long-arm statute applicable, there is “coextensive with federal due process requirements” and thus “the jurisdictional analyses under state law and federal due process are the same” (433 F3d at 1205; compare CPLR 302 [a] [1], with Cal Civ Proc Code § 410.10 [“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States”]). By contrast, we have repeatedly recognized that New York’s long-arm statute “does not confer jurisdiction in every case where it is constitutionally permissible” (Kreutter, 71 NY2d at 471; accord Talbot v Johnson Newspaper Corp., 71 NY2d 827, 828 [1988]). “Thus, a situation can occur in which the necessary contacts to satisfy due process are present, but in personam jurisdiction will not be obtained in this State because the statute does not authorize it” (Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 71 [1984]). The Ninth Circuit’s analysis in Yahoo! confirms that this is just such a situation.

Utilizing the “effects test” announced by the United States Supreme Court in Calder v Jones (465 US 783 [1984]) the Ninth Circuit majority held that by virtue of obtaining the French orders, the civil rights groups had “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state” (Yahoo!, 433 F3d at 1206). Because CPLR 302 (a) (3) expressly provides for jurisdiction in cases where—in contrast to transacting business in New York—a defendant “commits a tortious act without the state causing injury to person or property within the state,” use of such an effects test here “would be an unwarranted extension of [section 302 (a) (1)] and a usurpation of a function more properly belonging to the Legislature” (Ferrante, 26 NY2d at 285-286 [rejecting attempt to “superimpose” the language of CPLR 302 (a) (3) onto section 302 (a) (1) based upon New York effect of breach of contract]). Our Legislature, unlike California’s, has seen fit to confer jurisdiction in a limited subset of cases concerning nondomiciliaries. And, as we have in the past, we continue to adhere to that express mandate here.

IV

Accordingly, the certified question should be answered in the negative.

Chief Judge Kaye and Judges Graffeo, Read, Pigott and Jones concur; Judge Smith taking no part.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.

      . In an affidavit, the process server stated that plaintiff “grossly misrepresented” their meeting. He admits that he spoke to plaintiff and explained to her that she should contact a lawyer because “it looked like a default judgment had been entered against her.” But he submits that during this encounter he “was cordial and professional, and in no way threatened her or used a menacing tone.”

      . The English court’s May 3, 2005 judgment, which accompanied its May 3, 2005 order, notes, however, that an English law firm did submit a letter on behalf of plaintiff and Bonus Books, discussing the merits of a “plea of justification” in the English action.

      . According to plaintiff, she has “never lived in England . . . [Funding Evil] was never published in England . . . and [she has] never taken any steps to cause the Book to be made available to purchasers in England or to facilitate its availability there through internet sources.”

      . Section 9 (2) mandates a procedure whereby the parties are to agree upon the “content of any correction and apology, and the time, manner, form and place of publication.”

      . Plaintiff correctly notes that CPLR 302 (a) (2) and (3), as codified and subsequently amended, exempt from long-arm jurisdiction defamation actions against nondomiciliaries that are predicated upon statements made in or outside of New York. Because these provisions evince the Legislature’s intent to protect nondomiciliaries’ free speech rights (see Best Van Lines, Inc. v Walker, 490 F3d 239, 245 [2d Cir 2007], citing Legros v Irving, 38 AD2d 53, 55 [1st Dept 1971]), plaintiff claims that they lead to the conclusion that CPLR 302 (a) (1) must be interpreted to protect New Yorkers from the alleged chilling effect of foreign libel judgments. Plaintiff fails to explain, however, how our decision here would have any effect on the practice of libel law in England. And, in any event, our task is to interpret the New York statute as written. Thus, plaintiffs arguments regarding the enlargement of CPLR 302 (a) (1) to confer jurisdiction upon “libel tourists” must be directed to the Legislature.

      . Plaintiff claims that defendant’s prior ownership of two New York City condominiums, his previous indictment by a New York County grand jury in connection with an investigation into his activities as an executive of the Bank of Credit and Commerce International and his status as a defendant in several civil actions arising out of the September 11 terrorist attacks, which are currently pending in the United States District Court for the Southern District of New York, are proper bases for CPLR 302 (a) (1) jurisdiction. But these contacts are irrelevant to our analysis because plaintiff’s declaratory judgment action arises not out of these acts, but out of defendant’s activities related to the English judgment (see Johnson v Ward, 4 NY3d 516, 520 [2005] [“coincidental” activities not related to cause of action are “too insubstantial” to support long-arm jurisdiction]).
      Similarly flawed is plaintiffs assertion that defendant’s “monitoring her activities in New York,” by, among other things, reviewing a recent paperback edition of Funding Evil published in the United States and surveying a Web site maintained by the New York-based American Center for Democracy (www.public-integrity.org), an organization in which plaintiff serves as director, supports CPLR 302 (a) (1) jurisdiction. In an age where information about many New Yorkers can be accessed by those outside our state through a simple “Google” search, we decline to find that such “monitoring,” without more, constitutes the transaction of business in New York under CPLR 302 (a) (1).

      . Plaintiffs reliance upon defendant’s posting of the result of the English action on his Web site also fails to establish purposeful availment (see Best Van Lines, 490 F3d at 253-254 [posting of defamatory comments on “website accessible to readers in New York . . . d(oes) not constitute ‘transact(ing) business’ under section 302 (a) (1)”]).

      . Although eight Ninth Circuit judges found personal jurisdiction over the French civil rights groups, Yahoo! was ultimately dismissed on the merits. This was because six judges, sitting on the 11-member panel, voted to dismiss the case for lack of personal jurisdiction and ripeness, respectively (see 433 F3d at 1224 [“When the votes of the three judges who conclude that the suit is unripe are combined with the votes of the three dissenting judges who conclude that there is no personal jurisdiction . . . there are six votes to dismiss”]).

      . Plaintiffs assertion that our prior reliance upon U.S. Supreme Court due process precedents when interpreting CPLR 302 (a) (1) should lead to adoption of Yahoo!’ s holding here is unavailing. Indeed, as one member of the en banc panel opined:
      “The Supreme Court has never approved such a radical extension of personal jurisdiction as would sanction the majority’s holding that, by litigating a bona fide claim in a foreign court and receiving a favorable judgment, a foreign party automatically assents to being haled into court in the other litigant’s home forum” (Yahoo!, 433 F3d at 1229 [O’Scannlain, J., concurring]; see also id. at 1231 [concluding that district court lacked personal jurisdiction because the French groups’ “actions and contacts with . . . California were, at most, incidental to the legitimate exercise of their rights under French law”]).

      . Because we conclude that defendant has not transacted business in New York, it is unnecessary to reach the second prong of CPLR 302 (a) (1), whether plaintiffs declaratory judgment “action aris[es] out of defendant’s” alleged New York contacts.