New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2002-015-232, Claim No. 103734, Motion No. M-64445


State's second summary judgment motion denied as not based on newly discovered evidence nor was sufficient cause shown to justify multiple summary judgment motions. Affidavit of defense counsel and other without direct factual knowledge will not support the motion.

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:
March 14, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The State's motion seeking an order dismissing the instant claim pursuant to CPLR § 215 (3); Court of Claims Act § 10 (3-b) and § 11 (a); CPLR 3211 (a) (7) and CPLR 3212 is denied. The claim herein seeks to recover money damages arising from the alleged republication of defamatory statements contained in a report of the New York State Inspector General entitled "The Best Bang for Their Buck" originally published on the Internet on December 16, 1996. By decision and order dated March 8, 2000 (Firth v State of New York, 184 Misc 2d 105) this Court dismissed as untimely a prior claim (Claim No. 97999) asserting causes of action premised upon the December 16, 1996 publication of the report holding, insofar as relevant here, that "[w]hile 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" (Firth, supra at 115).

As originally served and filed on January 26, 2001 the claim alleged Internet republications of the report occurring on May 21, 1997, December 8, 1999, June 23, 2000 and December 18, 2000. By decision and order dated October 3, 2001 the Court dismissed as untimely those portions of the claim premised upon the alleged republication of the report on May 21, 1997, December 8, 1999 and June 23, 2000. The defendant's motion to dismiss that portion of the claim asserting that " . . . 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:" was denied.

On the instant motion, the defendant has submitted the affidavit of defense counsel who lacks direct knowledge of the facts; copies of the verified claim (Exhibit A) and verified answer (Exhibit B); a portion of a memorandum of law dated December 7, 2001 (Exhibit C) and the affidavit of Robert F. Brownell sworn to on December 10, 2001.

In his affidavit in support of the motion defense counsel argues that the allegations concerning republication of the report on December 18, 2000 are conclusory and therefore fail to state a cause of action. The defendant also asserts that the affidavit of Robert F. Brownell "establishes that the report was not republished on December 18, 2000 continuing to January 26, 2001" (Acton affidavit in support, paragraph 12).

The claimant opposed the motion by affirmation of counsel asserting that the motion is duplicative of the defendant's earlier motion and attaching a copy of what is purported to be a web page demonstrating that the subject report was created or modified on December 18, 2000. Claimant argues that if the State were seeking to reargue its prior motion pursuant to CPLR 2221 such motion is untimely. Claimant also argues that defendant's affiant Robert F. Brownell does not allege an association with the New York State Library, the State entity purportedly responsible for the alleged republication of the report at on December 18, 2000. Claimant contends that Mr. Brownell's affidavit is, therefore, not based upon direct knowledge of the library's activity on the date in question but rather upon Brownell's observations of the subject web site at issue at some unspecified time. Claimant's counsel's affirmation in opposition to the motion concludes with an allegation that the affiant personally downloaded a copy of the report (Claimant's exhibit B) from the above referenced web site "since December 18, 2000" (the actual date was not specified).

The instant motion must be denied. It is settled that multiple motions for summary judgment are disfavored by the Courts in the absence of newly discovered evidence or other sufficient cause (Detko v McDonald's Restaurants of N.Y., 198 AD2d 209, lv denied 83 NY2d 752; Inter-Power of N.Y. v Niagara Mohawk Power Corp, 259 AD2d 932, lv denied 93 NY2d 812). Neither newly discovered evidence nor sufficient cause for a second summary judgment motion is alleged here. Moreover, although defense counsel has presented an affidavit containing information not set forth in his affidavit submitted on an earlier motion (M-63608), he remains an individual without direct knowledge of the facts surrounding the alleged republication of the report on December 18, 2000, its alteration, editing or change in form. Defense counsel's affidavit is therefore without evidentiary value and will not support the motion (see McGowan v Villa Maria College, 185 AD2d 674, Johnson v Sharpe, 66 AD2d 955). The same must be said for the affidavit of Robert F. Brownell. As pointed out by claimant's counsel, Mr. Brownell does not purport to have been an employee or otherwise associated with the New York State Library on December 18, 2000 and nothing in his affidavit suggests direct knowledge of any events leading to or connected with the alleged placement or modification of the report upon the Internet on or about December 18, 2000. More importantly, the defendant has failed to establish that the report was not, in fact, placed upon a new web site at a different Internet address ( on December 18, 2000 as alleged in the claim.

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers [citation omitted]" (Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Robert Brownell, an information support specialist for the New York State Office of Inspector General, refers to the alleged placement of the report at URL address on December 18, 2000 in the following paragraphs of his affidavit:
6. The Web page that appears at the URL address, which Claimant states was posted on the Internet on December 18, 2000, has the same content and format as the original web posting of the report at

7. There have been no alterations of the Report text during any posting on the Internet. When Claimant states that 'beginning on December 18, 2000, . . . the State republished the report by publishing it on a web page that bears the following URL address:, ' I do not know to what he refers as this is the same file as was posted in December of 1996.
The placement of the report at a new Internet address for the first time on December 18, 2000 is not denied, much less controverted, by Mr. Brownell. Furthermore there has been no showing, other than the conclusory statements of Mr. Brownell, that the report which appears at the subject Internet address is in the same form and contains the same content as the report initially published at a different address on December 16, 1996. As a result, the defendant has failed to sustain its burden of establishing the absence of material issues of fact concerning the republication of "The Best Bang for Their Buck" at on December 18, 2000. Neither the pleadings, affidavits submitted by the defendant, nor the incomplete memorandum of law can be said to have met the defendant's summary judgment burden of demonstrating, as a matter of law, that there was no republication, alteration, editing or change in form of the allegedly defamatory material on or about December 18, 2000. If defendant had made a prima facie showing in that regard the burden would then have shifted to the claimant to demonstrate that a republication had indeed occurred as alleged or to demonstrate the existence of a material issue of fact in that regard. The issues regarding the alleged republication, alteration, editing or change in form identified in the Court's earlier decision and order and repeated herein remain for resolution at trial.

That part of the defendant's motion asserting for the second time[1] that the claim should be dismissed in that it fails to state a cause of action must also be denied. Viewing the allegations of the claim in the light most favorable to the claimant, providing the benefit of every favorable inference and affording the pleading a liberal construction (Corvetti v Town of Lake Pleasant, 227 AD2d 821, 822) the Court finds that the claim states the requisite elements of a cognizable cause of action grounded in defamation (Marraccini v Bertelsmann Music Group, 221 AD2d 95).

Finally, while the defendant argues in the memorandum of law (improperly attached as Exhibit C to the motion) that the claim is precluded by the defendant's qualified or absolute immunity, it failed to support this argument with any affidavit or documentary evidence in admissible form. Absent such proof there exists no evidentiary basis upon which a grant of summary judgment may be founded.

Defendant's motion for summary judgment is in all respects denied.

March 14, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 7, 2001;
  2. Affidavit of Dennis M. Acton sworn to December 11, 2001 with exhibits;
  3. Affirmation of Carl G. Dworkin dated December 26, 2001 with exhibits;
  4. Reply affidavit of Dennis M. Acton sworn to December 31, 2001.

[1]See earlier decision and order of the Court dated October 3, 2001.