New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2001-015-137, Claim No. 103492, Motion No. M-62834


Claimant's motion seeking late claim relief denied where both application and proposed claim lack specific allegations to enable the court to determine the timeliness of the claim and the potential merit of the claim. Claimant also failed to offer a reasonable excuse for the delay.

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:
Carl G. Dworkin, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 11, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6) is denied. The application for late claim relief was filed on December 7, 2000 and seeks to recover money damages for defamation stemming from publication of a report entitled "The Best Bang for Their Buck" on December 16, 1996 and allegedly republished on the world wide web on December 8, 1999 and June 23, 2000.

The facts underlying the claim were set forth in detail in a decision and order of this Court dated March 8, 2000 which dismissed claim number 97999. The Court found that claimant's defamation claim accrued on December 16, 1996, the date the Inspector General released the report and made it available on the Internet, and that claimant's assertion of a "continuing wrong" based upon the availability of that report on the Internet was without merit based in part on the holding of the Appellate Division, Third Department in Selkirk v State of New York, 249 AD2d 818. The decision in Selkirk stated that "the application of the [continuing violation] doctrine . . . may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct." The dismissal of the prior claim was also premised upon the holdings of the Court of Appeals in Gregoire v Putnam's Sons, 298 NY 119 and Lunney v Prodigy Services Co., 94 NY 2d 242. In Gregoire, the Court adopted the single publication rule with regard to defamation, departing from well-established British common law precedent first enunciated in Duke of Brunswick v Harmer, 14 QB 185, 177 Eng Rep 75. The Court of Appeals in Lunney, supra found that defamation actions arising out of the use of the Internet should be judicially evaluated "in accordance with our established tort principles" (Lunney, at 248-249).

Application of the above referenced precedents to the facts alleged in the claim led this Court to conclude that the claim accrued on December 16, 1996, the date the report was released to the public and made available on the Internet. As a result, the claim filed with the Court of Claims on March 18, 1998 was time barred under the one year Statute of Limitations for defamation set forth in CPLR § 215. In so holding the Court stated the following:
Applying established rules of law applicable to the accrual of defamation actions in this state requires a finding that the one year Statute of Limitations began to run on December 16, 1996, the date of the Report's original publication and the date when the Report was first made available on the Internet where it has remained unaltered to this date. Concerns regarding the rapid pace of changes in the way information is disseminated, the desire to avoid multiplicity of suits and the need to give effect to relevant Statutes of Limitation which gave rise to the single publication rule enunciated in Gregoire v Putnam's Sons, supra, 298 NY 119, are no less germane today than at the time of the rule's adoption. This Court sees no rational basis upon which to distinguish publication of a book or report through traditional printed media and publication through electronic means by making a copy of the text of the Report available via the Internet. While the act of making the document available constitutes a publication, in the absence of some alteration or change in form its continued availability on the Internet does not constitute a republication acting to begin the Statute of Limitations anew each day.
The State opposed the motion by affidavit of Robert F. Brownell, Information Systems Support Specialist for the New York State Office of the State Inspector General (OSIG). Mr. Brownell alleges that OSIG has not posted the report on the Internet since March 12, 1998 and that OSIG's "future site" on the Internet does not contain a copy of the report. The affiant denies knowledge of the republication of the report on the Internet on December 8, 1999 and June 23, 2000 as herein alleged by the claimant but states, on information and belief, that The New York State Library posted a scanned hard copy of the report on its web site at http://www/ in April 2000. That document he avers is identical to the previous electronic file posting of the report except for the addition of a New York State Documents page (Exhibit 1 to his affidavit) and a scanning guide sheet (Exhibit 2 to his affidavit).

The Court's consideration of the instant late claim motion must occur with full recognition of the court's dismissal of the prior claim which at this time stands as law of the case with regard to the issues therein determined. As to the instant motion, the movant has attached a proposed claim asserting a cause of action virtually identical to the prior claim but which alleges the republication of the report on December 8, 1999 and June 23, 2000.

In the first instance, it must be noted that the claimant has offered no proof except his own conclusory allegations that republication occurred on December 8, 1999 and June 23, 2000. He does not allege where such republication occurred; how or in what manner it took place; or how the State through its officers or agents effected the republication or had notice of it. Without such allegations the proposed claim fails to meet the requirements of Court of Claims Act § 11 (b). "Subdivision 6 of section 10 of the Court of Claims Act requires, as a precondition to the exercise by a court of its discretionary authority to allow a late filing, that the claimant submit a proposed claim satisfying the requirements of section 11 of the Court of Claims Act" (Glassman v Letchworth Vil. Developmental Center, 104 Misc 2d 755, 760). Nor are general and conclusory allegations without supporting facts enough to establish merit (see, Sevillia v State of New York, 91 AD2d 792). The instant claim fails to meet this standard and therefore does not properly support the motion for late claim relief. The conclusory allegations concerning the republication of the report are also relevant to the question of timeliness when considered against the Court's prior decision. Court of Claims Act § 10 (6) permits a late claim application to be made "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (see also, NY Const. Art III, § 19). In order to grant late claim relief the Court must first be satisfied that the application is timely under the applicable Statute of Limitations (Williams v State of New York, 235 AD2d 776), in this case the one year period prescribed in CPLR § 215 (3). Claimant has provided no basis upon which to determine that the application for late claim relief is timely in that he has provided only the most conclusory of allegations concerning the alleged republication of the report on the Internet. The most specific of the allegations concerning republication is found in paragraph 6 (b) of the claimant's affidavit in support which states:
Ultimately, I was made aware that at least some of the apparent republication dates were occasions upon which the report was taken off the internet [sic] i.e., was not being published thereon - and then was again published, using a different 'server'. It was after my becoming aware of what was apparently being done by the State that I filed my Notice of Intention relative to this Claim, in September, 2000.
Having previously determined that the prior claim was barred by the Statute of Limitations, it is incumbent upon the claimant to provide some basis for determining that a republication may have occurred other than unsupported conclusory statements not based upon personal knowledge.

As to the application itself, subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statutes of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy."

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

Claimant alleges in support of the late claim motion and by way of explanation for the delay in filing the claim that "I did not serve upon the State a Notice of Intention to File a Claim until after the period therefor primarily for two reasons." (Claimant's supporting affidavit pp 2, 3). The first of his purported reasons was that it never occurred to claimant that the State would "touch the report" after submitting an affidavit to the Court dated December 7, 1999 with regard to the motion to dismiss the prior claim. The second reason alleged for the delay is that claimant "decided to wait until I could determine the implications of what I was seeing." He alleges that he discovered at least one additional republication of the report on June 23, 2000. Claimant has not proffered a reasonable excuse for his failure to timely serve and file a claim and this factor weighs against granting the late claim application (Fenimore v State of New York, 28 AD2d 626).

As to the issue of merit, the movant must establish that the proposed claim has the appearance of merit in that "it is not patently groundless, frivolous, or legally defective and there is reason to believe that a valid cause of action exists" (Remley v State of New York, 174 Misc 2d 523, 524). As discussed above, the instant claim is lacking in essential factual allegations regarding the alleged republication of the defamatory material (Barber v Daly, 185 AD2d 567) when viewed in light of the law of the case set forth in the Court's prior decision regarding the single publication rule. This factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant alleges that the existence of the prior claim and the filing of the late claim application within the "time allowed therefore by the Civil Practice Law and Rules" negate any prejudice to the State. As stated above with regard to the issue of merit, claimant's allegations in this regard are lacking in specificity. While he states in conclusory fashion that the report was "modified - i.e., republished" on the world wide web on December 8, 1999 and June 23, 2000 he has provided no details as to where or in what fashion the republication occurred or how or in what manner the State or its agents or employees actually caused the republication. Nor has he alleged that the State had an opportunity to timely investigate the report's alleged republication. Contrary to his assertions, the existence of the prior claim does not support the instant motion for late claim relief since the dates of the alleged republications were subsequent to the prior claim's filing on March 18, 1998. The factors of notice, opportunity to investigate and lack of prejudice weight against granting the motion.

As to the last factor, it appears to the court that movant has no other available remedy.

A review of all of the factors, especially the lack of apparent merit, the absence of an acceptable excuse for the delay and the lack of notice, opportunity to investigate and resulting prejudice to the defendant persuade the Court that late claim relief should be denied.

April 11, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 6, 2001 [sic];
  2. Affidavit of George Firth sworn to December 6, 2000;
  3. Notice of intention to file a claim sworn to September 25, 2000;
  4. Verified claim dated December 6, 2000;
  5. Affidavit of Robert Brownell sworn to January 10, 2001;