New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2001-015-186, Claim No. 103492, Motion No. M-63607


Synopsis


Claim seeking damages for defamation dismissed for failure to timely file claim or serve notice of intention to file claim within 90 days of alleged republication of defamatory material on the internet.

Case Information

UID:
2001-015-186
Claimant(s):
GEORGE FIRTH
Claimant short name:
FIRTH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103492
Motion number(s):
M-63607
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
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:
October 1, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The defendant's motion to dismiss the claim on the ground that the claimant failed to timely serve and file a claim or serve upon the Attorney General a notice of intention to file a claim within the time provided therefor by Court of Claims Act § 10 (3-b) is granted. This claim, which was filed on December 7, 2000 and is one of several filed by the claimant, seeks to recover damages for alleged defamation stemming from the republication on the world wide web of a report of the New York State Inspector General entitled "The Best Bang for Their Buck" on May 21, 1997, December 8, 1999 and June 23, 2000. A motion pursuant to section 10 (6) of the Court of Claims Act seeking leave to file a late claim was denied by decision and order of this Court dated April 11, 2001 and filed on April 18, 2001 (Exhibit B). The denial of late claim relief was based, in part, on the claimant's failure to satisfy the requirements of section 11 (b) of the Court of Claims Act in that the proposed claim failed to allege where the republications occurred, how or in what manner each republication took place and how the State, its officers or agents effected or had notice of the republications. The Court found that claimant's general and conclusory allegations were insufficient to establish the apparent merit of the proposed claim. The Court also found that the allegations contained in the proposed claim were insufficient to establish that the late claim application had been made within the one year Statute of Limitations governing defamation actions (see CPLR § 215 (3)), particularly in light of the Court's earlier finding that publication of the report on the Internet initially occurred on December 16, 1996 and that pursuant to the single publication rule set forth in Gregoire v Putnam's Sons, 298 NY 119 and Lunney v Prodigy Services Co., 94 NY2d 242, its continued presence on the Internet would not constitute republication for Statute of Limitations purposes.

On the instant motion defendant's attorney alleges that the State's answer raised the issue of the claim's timeliness with the particularity required to avoid waiver of that objection pursuant to Court of Claims Act § 11 (c). The defense set forth in paragraph "Seventh" of the verified amended answer (Exhibit E) states:
The claim [sic] lacks jurisdiction since no claim or notice of intention was served upon the Attorney General within 90 days of the accrual of the causes of action alleged as required by Sections 10 (3), (3-b) and 11 (a) of the Court of Claims Act.
This language sets forth the affirmative defense of untimeliness with sufficient particularity to satisfy the requirements of section 11 (c) of the Court of Claims Act, since it provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also, Fowles v State of New York, 152 Misc 2d 837) and it references both the relevant statute and the particular requirement which should have been met but was not (see, Montes v State of New York, Ct Cl, May 24, 2001 [Claim No. 98706] Patti, J., unreported).

It is established that the failure to comply with the time and manner of service requirements in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to adjudicate a claim (see, Bryne v State of New York, 104 AD2d 782, lv dismissed, 64 NY2d 607; Conner v State of New York, 268 AD2d 706). In addition to the affidavit of the defendant's attorney, the State submitted a date stamped copy of the claim (Exhibit D) which reflects receipt by the Attorney General on December 7, 2000. In opposition, the claimant submitted a four paragraph attorney's affirmation and a memorandum of law which, as such, provide no evidentiary basis for determining that a claim or notice of intention to file a claim was actually served or served and filed within 90 days of any of the three alleged republication dates as required by Court of Claims Act § 10 (3-b) (see, Banker N. Salem Assocs. I v Haight, 204 AD2d 949, 950). As a result, the instant claim which was filed and served on December 7, 2000 is untimely and the Court is without jurisdiction to entertain it.

The defendant's motion to dismiss is granted. The defendant's request for summary judgment pursuant to CPLR 3212 has not been considered by the Court since support for the motion, consisting of an attorney's affidavit and a portion of an earlier submitted memorandum of law dated October 28, 1999 (Exhibit F), was insufficient as a matter of law to warrant judicial consideration (see, Salas v Town of Lake Luzerne, 265 AD2d 770).


October 1, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated June 8, 2001;
  2. Affidavit of Dennis M. Acton dated June 8, 2001 with exhibits;
  3. Affirmation of Carl G. Dworkin dated July 16, 2001.