New York State Court of Claims

New York State Court of Claims

WURTZEL v. THE STATE OF NEW YORK, #2000-019-528, Claim No. 102342, Motion No. M-61785


Court rejected Claimant's attempt to reformulate defamation claim as one for negligence in an attempt to avoid a one-year statute of limitations. Claim dismissed as barred by statute of limitations.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: NORWICK & SCHAD Kenneth P. Norwick, Esq., of counsel
Third-party defendant's attorney:

Signature date:
August 1, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion to dismiss filed by the State of New York (hereinafter "State") pursuant to CPLR 3211 alleging this claim is barred by the statute of limitations or, in the alternative, fails to state a cause of action.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed April 21, 2000.
  2. Notice of Motion No. M-61785, dated May 22, 2000 and filed May 25, 2000.
  4. "CLAIMANT'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS", undated and received by the Court on June 23, 2000.
  5. "REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS COMPLAINT", dated June 22, 2000 and received by the Court on June 28, 2000.
This Claim arises from an article published in the student newspaper, known as "Pipe Dream", at Binghamton University on April 17, 1998 and via the Internet on May 1, 1998. This Claim was served on April 18, 2000 and filed on April 21, 2000.[1] Claimant alleges that Anthony J. Benardello, President of the Student Association of Binghamton University, published an article that "[c]ontained libelous and defamatory material concerning the claimant." (Claim, ¶ 3). The Claim, however, then proceeds to describe the nature of the cause of action as follows:
[t]he nature of the claim includes but is not limited to: (a) negligence, in failing to properly supervise staff of the student newspaper; (b) negligence, in failing to supervise the content of the student newspaper; (c) violation of civil rights, including but not limited to privacy rights.

(Claim, ¶4).

1. Statute of Limitations

The State urges this Court to recognize that Claimant has reformulated his defamation claim to sound in negligence and/or civil rights violations in an attempt to avoid the one-year statute of limitations period relative to defamation cases. (CPLR 215). The Court agrees. The Court's function is to examine the true nature of the underlying claim rather than to blindly accept the label affixed by a litigant. (Morrison v National Broadcasting Co., 19 NY2d 453, 458-459). Here, there can be no doubt that this is a claim for defamation rather than negligence or a violation of civil rights.[2] (Pravada v County of Saratoga, 224 AD2d 764, 766, lv denied 88 NY2d 809). In fact, Claimant himself previously alleged a cause of action sounding in defamation in an earlier claim. A check of the records of the Office of the Clerk has revealed that Claimant filed a nearly identical claim in this Court on March 30, 1999 which was assigned Claim No. 100074.[3] A comparison of current Claim No. 102342 to Claim No. 100074 reveals the two pleadings are identical until the fourth paragraph where the original claim (No. 100074) describes this very same matter as follows: "[t]he nature of the claim includes but is not limited to (a) violation of civil rights (b) libel and defamation and (c) intentional infliction of emotional distress". (Claim No. 100074, ¶ 4). The original Claim makes no mention of a negligence cause of action. Despite Claimant's arguments to the contrary, the Court finds the substance of this claim is for defamation.

Having established that the gravamen of this Claim sounds in defamation, the Court now turns to the State's contention that the applicable statute of limitations has expired. The State asserts the governing statute of limitations is the one-year period contained in CPLR 215 (3), whereas Claimant argues the two-year limitations period set forth in Court of Claims Act (hereinafter "CCA") 10 (3) is controlling. Claimant's argument has previously been considered and rejected by the Third Department which concluded:
[t]hat CPLR 215 (subd 3) was applicable to a claim for defamation against the State. This result is not only consistent with what we find to be the legislative intent in adopting the Court of Claims Act, it accords with the spirit of the constitutional prohibition and avoids the effect of subjecting the State to a less favorable time limit for the commencement of an action based on an intentional tort than would be applicable as between any other parties.

(Trayer v State of New York, 90 AD2d 263, 268-269; and CCA 12[2]). Here, the subject article was published in the April 17, 1998 edition of Pipe Dream and then again via the Internet on May 1, 1998.[4] This Claim, however, was not served and filed until April 18, 2000 and May 21, 2000, respectively, which is more than one year after the article's initial publication in the newspaper and via the Internet. Consequently, the Court finds that this claim is barred by the one-year statute of limitations contained in CPLR 215 (3).

2. Failure to State a Cause of Action

Alternatively, the State also contends this claim fails to state a cause of action citing a similar case also involving the publication "Pipe Dream" at Binghamton University. (Mazart v State of New York, 109 Misc 2d 1092 [Ct Cl., 1981]). In Mazart, the Court concluded, inter alia, that "[t]he relationship of the University and the Pipe Dream is not such as would warrant the imposition of vicarious liability on the State for defamatory material appearing in the student newspaper [citation omitted]". (Mazart v State of New York, 109 Misc 2d 1092, 1102). Claimant's arguments that the reasoning of Mazart should be ignored are without merit. Thus, Claim No. 102342 should be dismissed for failure to state a claim as well.

Accordingly, for the reasons stated above, it is ordered that the State's motion to dismiss, Motion No. M-61785, is GRANTED and Claim No. 102342 is DISMISSED.

August 1, 2000
Binghamton, New York

Judge of the Court of Claims

Also, Claimant refers to having "filed" a Notice of Intention in the attorney general's office on July 13, 1998.
To the extent the claim seeks damages for the violation of Claimant's federal or state constitutional rights, there are existing common-law torts for which there are adequate alternative remedies. (Brown v State of New York, 89 NY2d 172; Augat v State of New York, 244 AD2d 835, lv denied 91 NY2d 814).
It is entirely possible that defendant is unaware of this earlier claim since that file reveals a letter to Claimant's counsel from the Court Clerk of the Binghamton District noting the claim was never served on the attorney general. Thus, it appears Claim No. 100074 is still an active case currently assigned to the Hon. Jerome F. Hanifin.
For an extensive analysis of the single publication rule to defamatory statements published via the Internet, see Firth v State of New York, 2000 WL 306865, [Ct Cl].