NY 2nd Dept. finds statute of limiations didn’t toll in suit against anonymous blogger

This case comes courtesy of some of the folks up in the Town of Wayawaynda in Upstate New York.   The controversy plays out like an oscar worthy movie.  Seems as if  someone beheaded a horse and then left the head in a Wayawanda Town Board member’s swimming pool.  The incident sparked accusatory anonymous blogs, posted in turn by  wayguy, johnny500 and wawayandafirst.  The posts occured on or about August 29, 2007 and  October 6, 2007 and accused plaintiff of pulling off the “Tom Hagan.” (although, like the plaintiff in this case, no one is sure that Don Corleone’s adopted son actually committed the heinous act).

Plaintiff filed suit on July 28, 2008 against Mike Hawkins, knowns as “wayguy” and two other bloggers, John Doe johnny500 (johnny500) and John Doe wawayandafirst (Wawayandafirst). Defendant Wayne Skinner was not identified by name in the original complaint, but on September 18, 2008, Plaintiff served Skinner  with copies of the original summons and complaint assuming Skinner was  John Doe johhny500 and wawayandafirst.   Three months later, on October 20, the complaint was amended, to include Wayne Skinner (and his wife.)

Skinner argued that the case should be dismissed since the statute of limitations ran prior to the October 20th filing. (the statute of limitations had not run out prior to July 28).   But, here is the twist, turns out that although skinner was not johnny500 he   was “wawayandfirst” and the court found that since  “the remaining John Doe named by the original complaint — “John Doe wawayandafirst’ (Wawayandafirst’)” — referred to Wayne Skinner, and since he was alleged in the complaint to be the individual responsible for issuing the Wawayandafirst blog posts. Under these circumstances, the original complaint was sufficient to have apprised Wayne Skinner that he was one of the intended defendants.”

I’m not sure whether the actual claim will stick, but I am certainly glad to see the court craft its opinion to hold an “originally anonymous” blogger responsible.

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