New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2001-015-152, , Motion No. M-63031


Motion for late claim relief denied for failure to establish merit to claim arising out of republication of alleged defamatory material on the internet.

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:
May 15, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6) is denied.[1] The instant application for late claim relief was filed on January 30, 2001 and seeks to recover money damages for alleged defamatory statements contained in a report entitled " The Best Bang for Their Buck" originally published on December 16, 1996 and allegedly republished on the world wide web on December 18, 2000. A separate application for late claim relief (M-62834) which alleged publication and republication on the Internet on December 8, 1999 and June 23, 2000 was denied by decision and order of this Court filed on April 18, 2001. The essential differences between that application and the instant application are contained in paragraphs "38" and "39" of the proposed claim (Movant's Exhibit A) which allege the following:
38. Upon information and belief, beginning on or about December 18, 2000, and continuing through this date, the State republished the report by publishing it on a webpage [sic] that bears the following URL address:

39. Upon information and belief, the website [sic] identified in the preceding paragraph was never before used for publication of the report.

The facts underlying the claim were set forth in detail in a decision and order of this Court dated March 8, 2000 which dismissed a prior claim premised upon the same allegedly libelous report (Firth v State of New York, 184 Misc 2d 105). The Court therein found that claimant's defamation claim accrued on December 16, 1996, the date the Inspector General released the report "The Best Bang for Their Buck" 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 NY2d 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 actions 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, (298 NY 119, supra) 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.
On the instant late claim application as on the prior application, 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 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 asp?oclc=42957414 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 Brownell affidavit does not specifically address the newly alleged republication on December 18, 2000.

Paragraph 2 of the affidavit of George Firth submitted in support of the instant motion states the following:
2. This Motion relates to the actions of the State on or about December 18, 2000. Upon information and belief, the State published the report that is the subject of the Claim being filed simultaneously herewith on a new internet [sic] site on that date. Since almost all information concerning the State's publication of the defamatory, libellous [sic] and slanderous report on is in the sole and exclusive possession of the State, I do not know as a certainty that December 18, 2000 was the first day of publication on that site. If the State can prove that the first day of publication of the report on that site was prior to 90 days prior to the filing of my Claim, then I ask the Court to grant permission for me to file what will have proven to be a late Claim. In the event that December 18, 2000 or some other date within 90 days of the date of filing and service was the first date of publication, then this Motion is unnecessary and is withdrawn. A copy of the Claim to which this Motion pertains is annexed hereto as Exhibit A, and a copy of the page on the internet [sic] showing information concerning the most recent publication by the State is annexed as Exhibit B.
Exhibit B appears to be a copy of an Internet page entitled "Investigation of Firearms Purchases . . . NYS DEC" and relating certain technical information including that the particular file to which the page refers was last modified on Monday, December 18, 2000. The document or file is not otherwise identified nor is the text provided or the manner in which the item was "modified" described.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute 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."

In the first instance, the Court notes that both the proposed claim attached to the late claim application and the claim filed with the Court and served on the Attorney General (Claim No. 103734) allege in paragraph "38" that republication of the defamatory material occurred on or about December 18, 2000. Using that date as the accrual date, the Court finds that the instant application for late claim relief is unnecessary since the filing and service of the claim itself on January 26, 2001 occurred within 90 days of the claim's alleged accrual on December 18, 2000. It is not appropriate for the Court to speculate, as urged by the movant, that he may have additional claims based on unspecified republication dates which accrued prior to 90 days before the filing of Claim No.103734 to which the motion for late claim relief might be applicable. By its own terms, late claim relief under Court of Claims Act § 10 (6) is available only to "[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention. . . ." The movant has failed to establish his eligibility for late claim relief in that, as indicated in paragraph two of the Firth affidavit, a claim seeking damages for the alleged republication of the "The Best Bang for Their Buck" on the Internet on December 18, 2000 has been timely filed.

As to the statutory factors, often the most important question is whether the proposed claim is meritorious, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254). To establish the appearance of merit a movant must simply demonstrate that the claim "is not patently groundless, frivolous or legally defective and there is reason to believe a valid cause of action exists" (Remley v State of New York, 174 Misc 2d 523, 524). To be actionable, a defamatory statement must be published (Dillon v City of New York, 261 AD2d 34), a fact which the movant herein has failed to establish. Mr. Firth merely asserts the fact of publication "upon information and belief" in his affidavit in support of the late claim application. Nor does the document attached as Exhibit B establish that the item to which it relates is, in fact, the report which movant claims defamed him. Even were the movant eligible for late claim relief he has failed to proffer facts from which it might be deduced that he was the subject of a defamatory statement published on December 18, 2000 and, as a result, has failed to establish the apparent merit of his claim.

Movant's application for late claim relief is denied.

May 15, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 26, 2001;
  2. Affidavit of George Firth sworn to January 26, 2001 with exhibits;
  3. Affidavit of Robert F. Brownell, sworn to January 10, 2001 with exhibits.

[1]The Court notes that movant simultaneously filed the instant motion and a verified claim (Claim No. 103734) which is identical to the proposed claim attached as Exhibit A to the motion papers.