New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2002-015-280, Claim No. 103734, Motion Nos. M-65088, CM-65164


Court denied defendant's motion to renew and reargue prior motion and granted claimant's cross-motion to compel responses to outstanding discovery demands in this defamation case.

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:
August 8, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion pursuant to CPLR 2221 for leave of court to renew and reargue a prior motion (M-64445) which unsuccessfully sought dismissal of the claim pursuant to CPLR § § 215 (3), 3211 (a) (7) and 3212 and Court of Claims Act § § 10 (3-b) and 11 (a) is denied. Claimant's cross-motion for an order pursuant to CPLR 3124 compelling the defendant to respond to claimant's outstanding discovery demands and to extend the time to complete discovery and file a note of issue set forth in the Court's preliminary conference order is granted; claimant's request for costs and sanctions against the defendant for the bringing of a frivolous motion is denied.

The underlying claim seeks to recover money damages arising from the alleged republication of purportedly 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 instant 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.

In a decision and order dated March 14, 2002 (filed March 22, 2002) the Court denied the defendant's second motion for summary judgment (M-64445) seeking dismissal of Claim No. 103734 pursuant to CPLR 215 (3); CPLR 3211 (a) (7), CPLR 3212 and Court of Claims Act § § 10 (3-b) and 11 (a). In its decision the Court noted that multiple motions for summary judgment are disfavored absent newly discovered evidence or other sufficient cause (citing, Detko v McDonald's Rests. 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). The Court found that the defendant had not met its burden of proof on the second motion since based upon its submissions the State had not demonstrated its entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; see also, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY3d 395, 404) regarding the State's republication of the defamatory material on December 18, 2000 as alleged in the claim. The decision and order further found that since the moving defendant had not met its initial burden on the motion the burden had not shifted to the claimant to demonstrate that a republication had in fact occurred on the date alleged or to demonstrate the existence of a material issue of fact in that regard. The Court further denied defendant's request to dismiss the claim for its alleged failure to state a cause of action on the grounds that it was barred by the doctrines of qualified or absolute governmental immunity since movant had offered no sworn factual averments or other evidence in support of the immunity claim. Defense counsel had merely attached a copy of a portion of a memorandum of law submitted on an earlier motion.

The defendant now moves pursuant to CPLR 2221 for an order granting leave to renew and/or reargue its prior motion for summary judgment. A motion to reargue is governed by CPLR 2221 (d) which provides:
(d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.
After careful review and consideration of defense counsel's supporting affidavit and attached exhibits it appears that the Court neither misapplied existing law nor misapprehended the facts presented by the movant on the earlier motion. Accordingly, the defendant's motion to reargue is denied.

The defendant has also moved to renew its prior motion and in conjunction therewith has offered the affidavits of Kathleen D. DeMers, Web Coordinator for the New York State Library Cultural Education Center, and Stephen Del Giacco, Director of Communications for the New York State Office of the State Inspector General. Motions to renew a prior motion are governed by subdivision (e) of Rule 2221 of the CPLR which provides:
(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.
The Legislature amended Rule 2221 in 1999 to add, inter alia, mandatory language requiring that a movant set forth a reasonable justification for its failure to submit on the prior motion the new facts upon which the motion for leave to renew is based (Greene v New York City Hous. Auth., 283 AD2d 458; Ulster Sav. Bank v Goldman, 183 Misc 2d 893). The effect of the 1999 amendment was to place in statute the proposition previously established by case law that "[i]n order to prevail on a motion to renew, the movant must demonstrate 'both new facts to support the motion and a justifiable excuse for not initially placing such facts before [the] . . . court' (Wagman v Village of Catskill, 213 AD2d 775; see Matter of Gilson v National Union Fire Ins. Co., supra at 898, Matter of Barnes v State of New York, 159 AD2d 753, lv dismissed 76 NY2d 935" (N.A.S. Partnership v Kligerman, 271 AD2d 922). It has been recognized more than once that "[r]enewal is by no means guaranteed and 'is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation' " (Matter of Barnes v State of New York, supra, at 754, quoting Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994; see also N.A.S. Partnership v Kligerman, supra).

Here, defense counsel's only excuse for not offering the affidavits of DeMers and Del Giacco on the prior motion is counsel's "reasonable belief that such proof was unnecessary based on the law of this State regarding a party's respective burden of proof on summary judgment motions (see, Zuckerman, supra, paragraph 4, above) and the language of this Court's prior decisions (new Exhibit 'H', Motion No. M- 62834, pages 4, 6; Motion No. M-63031, page 6)" (Affidavit in support, para. 15).

Paragraph 4 of defense counsel's affidavit in support (referenced above) relates the following:
4. Matters to be considered on the original and this present motion focus on the four corners of the claim, whether or not it states a cause of action (CPLR 3211 [a] [7]), is timely, and require the claimant to lay bare his proof and present ' . . . evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim. . . ' (Zuckerman v City of N.Y., [49 NY2d 557 at 562]).
The Court finds that the excuse proffered by the defendant does not constitute a reasonable justification for its failure to present the DeMers and Del Giacco affidavits on the prior motion.

In Zuckerman the Court of Appeals reiterated the clearly established rule that once the proponent of a motion for summary judgment establishes its entitlement to judgment as a matter of law the opposing party must put forth evidence in admissible form establishing the existence of a triable issue of fact. Defense counsel appears to have ignored the Court's holding on the prior motion upon which renewal is sought which stated the following:
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.
Any belief that the initial burden on the defendant's motion for summary judgment lay other than with the defendant cannot be countenanced as "reasonable" and thus may not form the basis of a reasonable justification for the failure to offer the allegedly new facts on the prior motion.

Defense counsel also references prior motion decisions in this matter as providing a reasonable belief that the proof now sought to be offered was unnecessary on the prior motion. However, those prior motion decisions (M-62834 and M-63031) addressed late claim applications pursuant to Court of Claims Act § 10 (6) and not motions for summary judgment. In particular, the specific pages of the motions referenced in defense counsel's affidavit concern the burden placed upon the proponent of a late claim application and have no relevance to the relative burdens applicable in a summary judgment motion.

Finally, paragraph 2 of subdivision (e) of Rule 2221 requires that the newly presented facts must be such as would change the prior determination. Consideration of the newly submitted affidavits would not have resulted in the dismissal of the claim and the defendant has, therefore, failed to satisfy this additional requirement for renewal.

Accordingly, the defendant's motion to renew the prior motion is denied.

Claimant's counsel has alleged that the defendant's motion to renew and reargue was frivolous and has asked the Court to impose financial sanctions or, in addition to or in lieu of sanctions, to award costs in the form of reimbursement of actual expenses and reasonable attorney's fees incurred in responding to the motion. Granting such an award or the imposition of sanctions is regulated by 22 NYCRR Part 130. Paragraph (c) of section 130-1.1 defines conduct as frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.
That paragraph further provides the following guidance to the Court in making its determination:
In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
It appears to the Court that the instant motion to renew and/or reargue, while somewhat lacking in apparent merit, was born out of defense counsel's obvious misapprehension of the fact that a republication of defamatory material may be found without proof of modification or alteration of the document containing the alleged defamatory material. This misapprehension is highlighted by the fact that defense counsel submitted the affidavit of Kathleen DeMers detailing activity which appears to support rather than disprove the claimant's assertion that a republication of the defamatory material occurred on December 18, 2000. According to that affidavit the State, through Ms. DeMers, removed the Inspector General's report from the internet in July 2000, stored it on her work computer for approximately five months and then placed it back on the State's website ( in a different directory (edocs/ig/execsum) in December 2000. Even in light of these assertions defense counsel obviously persists in his belief that such alleged facts are not indicative of republication absent additional proof that the State changed, modified or altered the text of the document in some significant way[1].

Considered in light of the surrounding circumstances the Court finds that defense counsel has not engaged in such frivolous conduct as to warrant relief pursuant to 22 NYCRR Part 130 (see, Bankers Trust Co of Cal. v Payne, 188 Misc 2d 726; cf. Jones v Camar Realty Corp., 167 AD2d 285). That is not to say, however, that the Court is pleased with the conduct or performance of either counsel. The petty, personal and unprofessional tenor of the papers submitted on the instant motion and cross-motion will not be tolerated by the Court and will not be permitted to affect or unduly extend the discovery process. Both counsels are warned that the Court expects and will require that level of civility which, although capable of, neither gentleman has exhibited thus far.

Finally, claimant has requested that the defendant be compelled to furnish responses to outstanding discovery including the production of requested witnesses for depositions and that the date previously scheduled by the Court for completion of discovery and the filing of the note of issue be extended. As defense counsel points out, discovery was stayed pending resolution of the defendant's earlier motions pursuant to CPLR 3214 (b).

Absent a stay upon appeal from the instant denial of defendant's renewal motion[2], responses to all outstanding discovery demands shall be served and filed within 45 days of receipt of this decision and order with notice of its entry. Depositions shall be scheduled, conducted and completed within 60 days following service and filing of discovery responses and the note of issue shall be filed on or before January 6, 2003.

The defendant's motion to renew and/or reargue the prior dismissal motion is denied. The claimant's cross-motion seeking an order compelling discovery responses and extending the date for completion of discovery and the filing of a note of issue is granted as herein provided and the claimant's request for costs and sanctions pursuant to 22 NYCRR Part 130 is denied.

August 8, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 19, 2002;
  2. Affidavit of Dennis M. Acton sworn to April 19, 2002 with exhibits;
  3. Affidavit of Kathleen D. DeMers sworn to April 22, 2002;
  4. Affidavit of Stephen Del Giacco sworn to April 22, 2002;
  5. Notice of cross-motion dated May 9, 2002;
  6. Affirmation of Carl G. Dworkin dated May 9, 2002 with exhibits;
  7. Affidavit of Dennis M. Acton sworn to May 14, 2002.

[1]The ultimate resolution of whether the State's activity on December 18, 2000 as related by Ms. DeMers constituted a republication as a matter of law is not now before the Court either on the defendant's motion, since leave to renew was herein denied, or on the claimant's cross-motion.

[2]No appeal lies from denial of motion to reargue (N.A.S. Partnership v Kligerman, 271 AD2d 922).