New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2001-015-187, Claim No. 103734, Motion No. M-63608


Synopsis


Defendant's motion to dismiss claim seeking damages for defamation granted in part and denied in part as untimely filed. The claim filed January 26, 2001 was timely with regard to alleged republication on December 18, 2001 but was untimely for alleged republication on May 21, 1997, December 8, 1999 and June 23, 2000.

Case Information

UID:
2001-015-187
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):
103734
Motion number(s):
M-63608
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 3, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion to dismiss the claim is granted as to those causes of action premised upon the alleged Internet republication of certain defamatory material on May 21, 1997, December 8, 1999, June 23, 2000 and is denied as to that portion of the claim which asserts that the claimant was defamed by a document published or republished on the Internet on December 18, 2000. The claim filed on January 26, 2001 seeks to recover damages arising in defamation attributable to the alleged republication of a report of the New York State Inspector General entitled "The Best Bang for Their Buck" originally published on the World Wide Web on December 16, 1996. A motion by claimant seeking late claim relief pursuant to Court of Claims Act § 10 (6) regarding this claim was denied in a decision and order of this Court dated May 15, 2001 and filed May 21, 2001 (Exhibit C). The motion was denied on the grounds that it was unnecessary since the claim was filed within 90 days of its alleged accrual and that the claim (treated as the proposed claim for purposes of the Court of Claims Act § 10 (6) motion) failed to establish the appearance of merit in that it failed to demonstrate that there had been a republication of the alleged defamatory material on December 18, 2000. The instant motion now seeks dismissal of the claim pursuant to CPLR 3211 (a) (5), CPLR 3211 (a) (7), CPLR 3211 (a) (8), CPLR § 215 (3), Court of Claims Act § § 10 (3-b) and 11 (a) and CPLR 3212.

The instant claim is distinguishable from earlier claims seeking similar relief arising out of republication of the allegedly defamatory material in that instead of the mere continued presence of the report on the primary Internet site on various dates this claim alleges, albeit upon information and belief, that in addition to those allegations the State republished the report on a different, identified web site not used previously. The claim in relevant part states:
32. Defendant republished "The Best Bang for Their Buck" on or about May 21, 1997 by republishing the entirety of the content of the primary internet [sic] site ("webpage" [sic]) at, on and in which it been [sic] originally published when it republished that webpage by adding another report that had been published by OSIG; and further, upon information and belief, it was necessary to discontinue publication of the webpage for some period of time while the revision was being accomplished.

33. Defendant republished "The Best Bang for Their Buck" on the internet on or about December 8, 1999 by republishing the report at, on and in the primary internet site.

34. Defendant republished "The Best Bang for Their Buck" on the internet on or about June 23, 2000 republishing the report at, on and in the primary internet site.

35. Upon information and belief, Defendant republished "The Best Bang for Their Buck" at least one other time between December 8, 1999 and June 23, 2000 by republishing the report at, on and in the primary internet site.

36. The State has also republished the report on at least one other website, nysdocs.nysed.gov/scandocs1/asp/oclc=42957414, commencing sometime after March 1, 2000, which is the subject of another Claim, filed in December, 2000.

37. Upon information and belief, Defendant ceased publication on the primary internet site on or about July 12, 2000 and has not published "The Best Bank for Their Buck" on that site since that time.

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 to a webpage that bears the following "URL address: www.nysl.nysed.gov/edocs/ig/execsum.htm.

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

The Court's attention is directed first to the defendant's request to dismiss the claim pursuant to CPLR 3211 (a) (8) based upon a lack of jurisdiction arising from its alleged untimely filing and service. To the extent that the instant claim alleges causes of action based upon republication of the alleged defamatory material on May 21, 1997, December 8, 1999 and June 23, 2000 and on some unspecified date "between December 8, 1999 and June 23, 2000 by republishing the report at, on and in the primary internet site" the claim was untimely commenced pursuant to Court of Claims Act § 10 (3-b). None of the aforementioned dates occurred within 90 days of the filing of the instant claim on January 26, 2001 and the Court is without jurisdiction to adjudicate the claim insofar as it pertains to alleged republications occurring on the dates referenced above (Malloy v State of New York, 196 AD2d 925; Collado v State of New York, 207 AD2d 936).

A contrary conclusion is reached, however, with regard to the timeliness of the claim relative to the republication alleged to have occurred on December 18, 2000 as set forth in paragraphs "38" and "39" of the claim. The claim was filed within 90 days of the alleged republication of the report on December 18, 2000 on what claimant asserts was a web site "never before used for publication of the report" (i.e., www.nysl.nysed.gov/edocs/ig/execsum.htm). On its face that portion of the claim is timely and is not subject to dismissal. Nor is dismissal warranted as to the alleged republication on December 18, 2000 for failure to satisfy the one-year Statute of Limitations applicable pursuant to CPLR § 215 (3)[1].

The defendant also seeks dismissal of the claim pursuant to CPLR 3211 (a)(7) on the ground that it fails to state a cause of action. It is well settled that in determining a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7) "the pleading is to be afforded a liberal construction, its allegations are accepted as true, plaintiffs are accorded the benefit of every possible favorable inference" and the Court is to discern "whether the facts alleged fit within any cognizable legal theory" (Corvetti v Town of Lake Pleasant, 227 AD2d 821, 822). It is also established that "[a] movant must specify in its motion papers and affidavits the precise alleged defects in the complaint" (Roland Pietropaoli Trucking v Nationwide Mut. Ins. Co., 100 AD2d 680). Here the defendant's attorney has asserted that "all of the allegations of republication contained in the claim (paragraphs 32, 33, 34, 35, 36, 38) are conclusory and fail to state a cause of action since they are unsupported by specific and adequate allegations of fact and fail to demonstrate that the report was altered, placed in a new form or edited in a different manner." This argument appears to be based on the Court's prior decision and order dated March 8, 2000 which granted the defendant's motion for summary judgment dismissing Claim No. 97999 as time- barred pursuant to CPLR § 215 on the ground that the defamation action accrued with the release of the report on December 16, 1996 and that in the absence of some alteration or change in form its continued availability on the Internet does not constitute a republication.

While it is true that vague and conclusory allegations are insufficient to withstand a CPLR 3211 (a)(7) motion to dismiss (see, Weimer v City of Johnstown, 249 AD2d 608), viewing the allegations of the claim in the light most favorable to the claimant and providing the benefit of every favorable inference it appears to the Court that the claim states the requisite elements of a cause of action (Marraccini v Bertelsmann Music Group, 221 AD2d 95) grounded in defamation. Accordingly, the defendant's motion to dismiss the claim for its alleged failure to state a cause of action must be denied.

The questions raised by defendant's argument, namely, whether or not there was a republication of the report on December 18, 2000 and whether the report was altered, edited or placed in a new form, might have been addressed in a proper motion for summary judgment. Here, however, the defendant's support for its CPLR 3212 motion consists of but a single paragraph in counsel's supporting affidavit which states: "13. This claim should be dismissed as a matter of law pursuant to CPLR Rule 3212 (see attached memorandum of law, Exhibit F)." Exhibit F is a portion of a previously submitted memorandum of law dated October 28, 1999. Support for that portion of the motion seeking summary judgment was insufficient as a matter of law to warrant judicial consideration (see, Salas v Town of Lake Luzerne, 265 AD2d 770). Consequently, defendant's request for summary judgment is denied.

In conclusion, the defendant's motion to dismiss is granted except as to that portion of the claim which alleges that the claimant was defamed by publication of the report entitled "The Best Bang for Their Buck" on the Internet on December 18, 2000. That portion of the motion is denied.


October 3, 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 sworn to June 8, 2001 with exhibits;
  1. Affirmation of Carl G. Dworkin dated July 16, 2001.

[1]Arguably CPLR § 215 (3) would not prohibit consideration of the alleged republication on June 23, 2000 but as noted above the Court lacks jurisdiction to entertain a claim alleged to have accrued on that date because the claimant failed to satisfy the jurisdictional prerequisite established by Court of Claims Act § 10 (3-b).