New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2003-015-322, Claim No. 103734, Motion Nos. M-66495, CM-66624


State was immune from liability for alleged defamatory statements contained within an official report which the State Inspector General was duty bound to issue. Document was either absolutely privileged or was subject to a qualified privilege which required claimant to demonstrate malice. Claimant made no such showing.

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 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 29, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order granting summary judgment is denied and defendant's cross-motion for summary judgment dismissing the claim is granted. The claim seeks to recover damages arising from an alleged republication of purportedly defamatory statements contained in an official report issued by the New York State Inspector General after an investigation of the Department of Environmental Conservation (DEC) Law Enforcement Division's (LED) handling of firearms in connection with upgrades of its weapons in 1990 and in 1993. The report entitled "The Best Bang for Their Buck" was published by the Office of the State Inspector General in book form in December 1996. According to claimant the defendant contemporaneously published the report on the internet at (see, verified claim paras 23-24 [Exhibit A]). Claimant alleges that on some unspecified date the report was published on a secondary internet site (Exhibit 1, para 30). Claimant further alleges republication of the report on numerous dates and at different internet addresses. These allegations were the subject of a prior motion to dismiss (M-64445) based on the one year Statute of Limitations applicable to defamation pursuant to CPLR § 215 (3). On that motion the Court dismissed the claim as to all alleged internet republications except for that which allegedly occurred on December 18, 2000 as to which the instant claim filed January 26, 2001 was timely.

Claimant now moves for summary judgment based upon the alleged republication of the report on December 18, 2000. The defendant has cross-moved for summary judgment seeking an order dismissing the claim on several grounds including that the allegedly defamatory matter was not republished on December 18, 2000; claimant as a public figure has not met his heavy burden of establishing malice by clear and convincing evidence or demonstrated the existence of a triable issue of fact in that regard; and that the report, if republished, is entitled to either an absolute or qualified privilege immunizing the State from liability arising from any defamatory remarks contained within a report which the Inspector General had a duty to publish.

For the reasons which follow the claimant's motion is denied and the defendant's cross-motion is granted.

Claimant supported his motion by his own affidavit consisting of 99 paragraphs primarily composed of argument rather than allegations of fact. CPLR 3212 (b) provides that the supporting affidavit "shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit." Judged by this standard claimant's affidavit is deficient in many respects. It incorrectly recites that "[t]he law of the case on the central issue of whether the republication of the OSIG Report on December 18, 2000 was republication is that it was." In its decision dated March 14, 2002 the Court stated "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." Thus, claimant incorrectly asserts that the Court determined a republication of the report occurred on December 18, 2000 and that such determination is the law of the case. As the Court's language illustrates the issue of republication could not be determined on that prior motion. Claimant also made a reference in his affidavit in support of the instant motion to the deposition testimony of Kathleen DeMers alleging her direct involvement in the republication of the report and referring the reader to pages 10 and 11 of a transcript of DeMers' examination before trial which claimant attached as Exhibit D. Not only did claimant not provide a complete copy of the transcript of Ms. DeMers' examination for the Court's review but the two page excerpt provided does not demonstrate Ms. DeMers' direct involvement in the alleged republication.

In addition, claimant argues in his affidavit that the malice of the State Inspector General is evident from a comparison of the subject report with two reports issued by then New York State Assemblyman John Faso in 1993 and 1994 dealing with gun disposal practices and a 1997 report of the State Inspector General concerning fraudulent practices at the State Department of Motor Vehicles. These documents have no relevance to the report at issue and fail to show actual malice by clear and convincing evidence on the part of the State Inspector General toward the claimant as he avers. The remainder of claimant's affidavit is composed of bare conclusory allegations or more precisely argument lacking in evidentiary material. On point are claimant's assertions on the issue of damages. Firth alleges that his reputation which was "excellent and unassailable" was irreparably damaged as a result of the publication and, presumably, by republication of the report. That allegation is not, however, supported by even the barest of proof in admissible form. Firth's generalized allegations standing alone are insufficient to demonstrate damage to his reputation.

Similarly, Firth argues that since the State Ethics Commission took no action against two other LED employees specifically named in the report the Commission would have reached the same conclusion and taken no action as to him. However, he fails to address the fact that the State Ethics Commission was divested of its jurisdiction over him by his retirement from State service subsequent to the issuance of the report (see, Flynn, Matter of, v State Ethics Commn., Dept. of State, State of N.Y., 87 NY2d 199). The failure of the Commission to act against the persons he named, Karaka and Haslun, does not prove that no action would have been taken against Firth had he remained on the State's payroll following the State Inspector General's referral of the matter to the Commission. The Court is similarly unpersuaded by claimant's generalized argument that the alleged republication of the report after the refusal of what claimant calls other "jurisdictional agencies" to take action (see, Firth affidavit para 24) demonstrates that the State was motivated by the destruction of Firth's reputation or the reputation of the other people targeted (see, Firth affidavit, para 24).

In paragraphs 26 - 99 of his affidavit Firth sets forth allegations mixed with argument related to various statements in the subject report which he claims are defamatory to him personally and to a class of persons not named individually but of which he was a member. Since the instant claim is an individual one and not a class action those allegations which relate to members of a class of persons are too nonspecific to be actionable. It has long been recognized in New York that an action for defamation lies only where the defendant has published matter "of and concerning the plaintiff" (Corrigan v Bobbs-Merrill Co., 228 NY 58, 64). "Consequently, an impersonal reproach of an intermediate class is not actionable (Eastwood v Holmes, 1 F & F 347)" (Gross v Cantor, 270 NY 93, 96).

There are, however, sufficiently particular allegations of both criminal conduct and or professional mismanagement set forth in the State Inspector General's report and ascribed to the claimant personally to constitute defamation per se had claimant successfully made a prima facie showing of the other elements necessary to prove such a cause of action.

On the issue of malice Firth's allegations in support of his motion are long on speculation, conjecture and conclusion and short on specific facts as the following examples drawn from his supporting affidavit show:
13. Considering that the subject matter had already been covered by the Faso Reports and there were outstanding recommendations upon which action was indicated, it would seem that it would be clear to any reasonable person that the OSIG Report was motivated by something other than remedial interest.

24. The fact that the jurisdictional agencies refused to take action itself calls into severe question the legitimacy of the charges and character attacks levelled [sic] by the State in the report. The fact that the State republished the OSIG Report on the internet in spite of those rejections and in spite of the fact that the Governor had adopted the prime recommendation of used gun meltdown suggests that the motive was the destruction of my reputation and those of the other people targeted.

73. As the State also knew, there are limits to what a manager can do in order to assure that his subordinates follow the law, and the State knew when it wrote the report initially and when it republished it that I repeatedly took steps over the course of more than 12 years to remind the officers of their C-Form obligations and that I took disciplinary action against one of the officers for his violation. See, Exhibit P hereof. However, the OSIG Report does not so indicate. The absence in the OSIG Report of information concerning my repeated efforts to secure compliance by my subordinates with the law tends to reinforce to the reader the implication that I countenanced or was complicit in, or both, illegal acts by subordinates, and that my character was seriously flawed. Since that is false, and the State knew it at the time of initial publication and at the time of republication, all statements that lead the reader to believe that I acted illegally or countenance or was complicit with others' illegal actions are defamatory per se.

Clearly, claimant's submissions on this motion are insufficient to merit judgment against the State as a matter of law and claimant's motion must be denied.

Defendant's cross-motion is supported by the affidavits of defense counsel, Ralph Rossi and Charles Norfleet. These affidavits raise for the Court's consideration on the cross-motion the issue of claimant's failure to demonstrate the defendant's actual malice by clear and convincing evidence and the State's claim that the Inspector General's report is subject to either an absolute or qualified privilege rendering the State immune from liability. Chief among those is the affidavit of Charles R. Norfleet, currently a Deputy Inspector General and formerly a Principal Investigator in the Office of the State Inspector General during the investigation which resulted in the issuance of the subject report. The affiant described the focus of the Inspector General's investigation and the lack of malice on his part and on the part of the investigatory team as follows:
4. The focus of my efforts and those with whom I worked on the investigation of impropriety and wrongdoing with regard to the 1990 and 1993 DEC gun transactions and related matters, was to determine the facts, and whether any laws, policies or ethical rules were violated. Where and when the factual basis was established, we then sought to determine whether or not the facts developed by our investigation gave reason to believe that ethical, policy and/or legal violations had been committed. The results of the investigation were then reviewed in order to make appropriate prosecutorial, ethical, disciplinary, and administrative findings.

5. Prior to the DEC investigation, I had not met George Firth. At no time during the aforementioned activities did I harbor or express a malicious motivation towards George Firth, the Claimant herein, nor did I act or witness actions or statements of others with whom I worked, which would allow the inference of such malicious motives, spite or ill will. Nor was the investigation conducted in a manner that recklessly disregarded the truth. Rather, the Report represented many hours of research, interviews, documentary review, drafting, fact checking and re-drafting.

6. The investigation and Report were the result of an objective and fair process involving many public servants from different agencies, and the input of experienced professionals whose only purpose was to test the facts of the allegations with which they were presented against the ethical and legal standards that the people of this State are entitled to expect from their governing officials.
He further asserted a lack of ill will or intention to harm Firth in paragraph 8 of his affidavit where, in relevant part, he stated:
8. My response to Paragraph 19 of the Firth Affidavit is as follows. As I stated, in Paragraph 5, supra, I never acted with malice toward Firth. The investigation of his personal life is typical for subjects of OSIG's investigations. Firth was in a position to supervise so many of the functions that OSIG found were not handled properly with respect to the two handgun transactions at issue (as described on page 79 of the Report), that it was a logical investigative step to see if he had received money or other benefits from other persons involved in the conduct at issue, which included gun dealers, gun distributors, subordinates and others. It was only in an effort to prove or disprove theories of OSIG's case, or to confirm or throw out evidence, that any aspect of Firth's personal life was examined. Several witnesses did tell me of various misconduct of Firth. Some information and allegations regarding Firth did not make it into the Report, but other parts did.
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These allegations were sufficient to place the issue of malice squarely before the Court. In opposition to the defendant's cross-motion and in further support of the initial motion Firth provided an affidavit in which he presented the following allegations and argument regarding the defendant's alleged malice in publishing or republishing the report.
8. The State presents that statement for the purpose of showing that OSIG was not acting in a rogue manner in this investigation. However, if the State is indeed relying on that statement as the definitive description, it cannot validly draw any conclusions concerning my character and integrity and trustworthiness, because it has defined the investigation as one into events, not individuals' character.

9. That the State would draw conclusions about my character from an investigation into events suggests in the strongest possible terms malice per se.

11. The third point in overview is that the real purpose could not have been to investigate acquisition process deficiencies and propose remedial actions because none are proposed. There is not a single word about changing the process of determining, as to any police agency in the State, whether to purchase new weapons and what weapons to purchase. If it were truly an objective, then there would be some proposals. Without the proposals for change, there is no reasonable basis for the substantial amount of discussion throughout the report that challenges the process both as to the justification for the two purchases and the supposed manipulation of the process. The fact that there is all of that discussion and those aspersions without any remedial measures proposed militates exceptionally strong in favor of the conclusion that statements in that regard were made for some purpose other than examining systemic weaknesses and proposing changes, and strongly suggests malice per se.
17. Again, if the purpose of the investigation was reform of the system, efforts are made to reform, not to allow continuation of conduct deemed inappropriate. The fact that OSIG did not intervene in the 1993 transaction suggests strongly that the motive for the investigation was something other than reform of the system.

20. In [paragraph] 14 of his affidavit, Acton asserts that I have no reason to complain about the republication of the report after all jurisdictional agencies refused to take action, while the report reads as if such action could yet be taken. He engages in rife speculation. If what Acton is saying were really believed by all of the prosecutors who refused to act, and by the Ethics Commission that cleared the other two prime targets, then the State would have submitted affidavits from them, so the inference must be drawn that those agencies do not agree. The fact of the republication without noting the lack of action by jurisdictional agencies, and without affidavits from jurisdictional agencies militates strongly in favor of a finding of malice.

37. In [paragraph] 27 of his affidavit, Rossi uses the phraseology, "reasonable minds can differ over the subject of the need for greater firepower." Fair enough. However, firepower is an expert issue, and the State has admitted that it sent only an auditor/investigator and public relations person to investigate firepower. The fact that the State would not have sought out an expert's opinion is very troubling, given the fact that the State agrees that firepower is an issue regarding justification for the upgrade. Had an expert's opinion been sought, as we have demonstrated, the response would have been favorable to the upgrade. Since the State had reason to know that, it recklessly disregarded the truth in making accusations that there was no justification.

39. In [paragraph] 29 of his affidavit, Rossi cites the report's speculation as to motive, "Perhaps the real motivation..." This is a straightforward admission that the attacks on my integrity were based upon speculation. The report does not say that my character is "perhaps" flawed, it declares that it is in no uncertain terms. To draw that conclusion based upon speculation demonstrates malice and renders the entire report clearly defamatory per se.

40. Moreover, in [paragraphs] 30, 31, 32 and 33 of his affidavit, Rossi goes through the numerous ways in which OSIG piled supposition upon conjecture and surmise to reach a conclusion as to matters clearly beyond their competence, to wit: firepower. I ask again where the affidavits are from experts to support the judgment of the non-experts. They looked at paper and drew conclusions as to weapons; as a matter of logic, this was fundamentally flawed. That they did so was fundamentally malicious. If I was not supposed to rely upon what I was told by the State Police, who then? Rossi does not say, because the State has not been guided by any expertise in assessing what occurred.

42. The bottom line analysis is that the State did not accept the ballistic justification. To the contrary, a fair reading of the report was that there was no ballistic justification. If the State is now saying that there was, and I was attacked anyway, the attack was clearly spurious, gratuitous and malicious.

60. In sum and substance, I legally possessed the guns in the State of New York, legally transported them to Kentucky or asked a Federal Firearms Dealer to legally transfer them to a Federal Firearms Dealer in Kentucky, who did so. Only Norfleet says that there might be a violation of any law on that state of facts. Not even Norfleet, much less an attorney upon proper legal argument, is prepared to be definitive about the matter, as the State was in the report. The fact that there was neither factual nor legal basis for the accusation of my being a federal firearms lawbreaker establishes malice, and rendered that accusation indisputably defamatory at the time of publication and particularly at the time of republication, since it had been explicitly brought to the State's attention.

70. [Paragraph] 28 of Norfleet's affidavit defies description. Instead of coming to grips with the substance of my comments, he demeans me. I made repeated efforts, including bringing charges against a subordinate, to secure C-Form compliance before I knew anything about this investigation. My comment was that the State took the position in the report that I was strictly liable for the failures of my subordinates and no matter how great my efforts. Since there is no basis in law for the head of the agency to be held strictly liable, the fact that the report accused me, in essence, of being complicit in C-Form violations despite my efforts, and did not tell the reader of my efforts demonstrated malice.

It is well settled that "[a] defamatory writing is one which 'tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community ...' (McKinnon v Smith, 52 Misc 2d 349, affd 32 AD2d 615)"(Rinaldi v Viking Penguin, 101 Misc 2d 928, 935). Words which allege professional incompetence or charge a crime (such as those complained of here) constitute "libel per se and [are] actionable without any allegation of special damages" (Rinaldi v Viking Penguin, supra). Where the subject of the defamatory statements is a public figure, however, the claimant is required to meet the heavy burden of proof enunciated by the United States Supreme Court in the case of New York Times v Sullivan, 376 US 254. The Supreme Court therein held that a public official must establish with "convincing clarity," i.e., by clear and convincing evidence, that both a false statement was made and "that the statement was made with 'actual malice' - that is with knowledge that it was false or with reckless disregard of whether it was false or not" (New York Times v Sullivan, supra, at 279-280; see, Rinaldi v Viking Penguin, 52 NY2d 422, 435-436).

Where the issue of claimant's public figure status is in dispute the Court must determine whether the person defamed is a public official subject to the New York Times v Sullivan standard. Here, however, claimant has conceded his status as a public official and has acknowledged his burden to demonstrate actual malice pursuant to that standard, therefore, a judicial determination in that regard is unnecessary.

The elements of a cause of action for defamation are "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se ( Restatement [Second] of Torts, § 558)" (Dillon v City of New York, 261 AD2d 34, 38). New York practice recognizes two forms of privilege in actions for defamation. It has been said that there is "a marked and well settled distinction between absolute and qualified privilege in actions for defamation" (Kilcoin v Wolansky, 75 AD2d 1, 6). Where a qualified privilege applies it can be defeated by claimant's showing of actual malice. An absolute privilege, however, "affords complete immunity from defamation suits regardless of any malice which may have actuated the speaker (see, Stukuls v State of New York, 42 NY2d 272)" (Kilcoin v Wolansky, supra). In Clark v McGee, 49 NY2d 613 at 617-618 the Court of Appeals held:
[T]he absolute privilege which defendant claims is that complete immunity from liability for defamation which is afforded 'an official [who] is a principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension' (Stukuls v State of New York, 42 NY2d 272, 278) with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties (see, Sheridan v Crisona, 14 NY2d 108, 113; Lombardo v Stoke, 18 NY2d 394).

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The Court explained the rule of privilege and its underlying policy considerations in the following manner in Park Knoll Assoc. v Schmidt, 59 NY2d 205, 208-209:
A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable (see, Cheatum v Wehle, 5 NY2d 585; Andrews v Gardiner, 224 NY 440). Because the perceived social benefit in encouraging free speech or the discharge of governmental responsibility sometimes outweighs the individual's underlying right to a good reputation, the individual's right may have to yield to a privilege granted the speaker barring recovery of damages for the defamatory statements. The privilege may be either absolute or conditional depending on the occasion and the position or status of the speaker. The difference is in the degree of protection afforded the speaker. If the privilege is absolute, it confers immunity from liability regardless of motive. If it is conditional or qualified, it can be lost by plaintiff's proof that defendant acted out of malice (see generally, Prosser, Torts [4th ed], § § 114, 115; Restatement Torts 2d § 583 et seq. 1 Harper and James, Torts, § § 5.25, 5.26).

Here the defendant has alleged that "The Best Bang for Their Buck" was an official report issued by the Governor's appointee charged with the duty to investigate allegations of corruption, fraud, criminal activity, conflicts of interest or abuse within State agencies, including the Department of Environmental Conservation, and to prepare and release reports of any such investigation to the public. Thus, defendant asserts that the report was absolutely privileged and the State is immune from liability.

The Court's examination of the applicability of absolute privilege to the subject report must begin with Executive Law § 6 which in relevant part provides:
§ 6. Examination and inspection by the governor

The governor is authorized at any time, either in person or by one or more persons appointed for the purpose, to examine and investigate the management and affairs of any department, board, bureau or commission of the state. The governor and the persons so appointed by him are empowered to subpoena and enforce the attendance of witnesses, to administer oaths and examine witnesses under oath and to require the production of any books or papers deemed relevant or material. Whenever any person so appointed shall not be regularly in the service of the state his compensation for such services shall be fixed by the governor, and said compensation and all necessary expenses of such examinations and investigations shall be paid from the treasury out of any appropriations made for the purpose upon the order of the governor and the audit and warrant of the comptroller.
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Governor George Pataki issued Executive Order No. 39 dated June 17, 1996 in the exercise of the powers conferred by the statute which permit the appointment of an individual authorized to investigate the management and affairs of any department. That Executive Order revoked Executive Order No. 103 and reestablished within the Executive Department the Office of the State Inspector General. It provided for the appointment of one or more Deputy Inspectors General to serve at the pleasure of the State Inspector General, authorized the staff and resources necessary to carry out the duties and responsibilities specified in the order and directed that the State Inspector General shall report to the Secretary to the Governor. Most importantly, it set forth the following duties and responsibilities of the State Inspector General:
1. To receive and investigate complaints from any source, or upon his or her own initiative, concerning allegations of corruption, fraud, criminal activity, conflicts of interest or abuse in any covered agency;

2. To inform the heads of covered agencies of such allegations and the progress of investigations related thereto, unless special circumstances require confidentiality;

3. To determine with respect to such allegations whether disciplinary action, civil or criminal prosecution, or further investigation by an appropriate federal, state or local agency is warranted, and to assist in such investigations;

4. To prepare and release to the public written reports of such investigations, as appropriate and to the extent permitted by law, subject to redactions to protect the confidentiality of witnesses. The release of all or portions of such reports may be deferred to protect the confidentiality of an ongoing investigation;

5. To review and examine periodically the policies and procedures of covered agencies with regard to the prevention and detection of corruption, fraud, criminal activity, conflicts of interest or abuse;

6. To recommend remedial action to prevent or eliminate corruption, fraud, criminal activity, conflicts of interest or abuse in covered agencies; and

7. To establish programs for training state officers and employees regarding the prevention and elimination of corruption, fraud, criminal activity, conflicts of interest or abuse in covered agencies.

Pursuant to Executive Law § 6 the State Inspector General is the Governor's alter ego for purposes of investigating allegations of fraud, corruption or mismanagement of State agencies such as the Department of Environmental Conservation. The duties prescribed in Executive Order No. 39 support the conclusion that the State Inspector General is vested with administrative and executive policy making responsibilities of considerable dimension. In fact, in carrying out his or her duties the Inspector General is exercising powers vested in the Governor and ceded by him to his appointee pursuant to section 6 of the Executive Law. In this regard, the instant matter is clearly distinguishable on its facts from Mahoney v Temporary Commn. of Investigation of State of N.Y., 165 AD2d 233. As the Appellate Division, Third Department, noted in Mahoney, the State Commission of Investigation was temporary in nature and possessed only limited powers while, by comparison, the State Inspector General's powers and duties extend to all State departments and agencies.

The provisions of Executive Order No. 39 make clear that the State Inspector General's investigation and report pertaining to fraud or irregularities in the purchase of handguns by the Law Enforcement Division were within the scope and in pursuance of the duties of the office (see, Aquilone v City of New York, 262 AD2d 13 appeal denied 93 NY2d 819). Given the tasks assigned the Office, it seems clear that the Inspector General is the sort of official to whom an absolute privilege is essential in the conduct of his governmental responsibilities and that only through recognition of such a privilege may the public interest in ensuring that the Inspector General may exercise his or her duties freely without fear of harassment or financial hazard be protected (Stukuls v State of New York, 42 NY2d 272, 278). It is difficult to consider a governmental actor more appropriately accorded the shield of absolute privilege than the entity charged with the task of investigating and reporting on corruption, fraud, conflicts of interest and criminal activities within State agencies. Any lesser protection would have the effect of inhibiting the full exercise of the important powers conferred upon the Inspector General and unduly restrict important avenues of public inquiry (Studley v Lefrak, 50 AD2d 162, affd 41 NY2d 881). Accordingly, since "The Best Bang for Their Buck" is found to have been prepared and released in the discharge of the State Inspector General's governmental duties concerning a matter clearly within the ambit of its responsibility the report is subject to an absolute privilege relative to any defamatory statements contained therein (see, Aquilone v City of New York, 262 AD2d 13; Ward Telecommunications and Computer Svcs., Inc. v State of New York, 42 NY2d 289, 290; Stukuls v State of New York, 42 NY2d 272; Cheatum v Wehle, 5 NY2d 585).

Since the State is immune from liability for defamatory statements contained in a document subject to an absolute privilege defendant's motion to dismiss the claim must be and hereby is granted. Even if the Court were to assume for argument's sake that the subject report is not absolutely privileged, dismissal would still be warranted on the grounds that (i) the report is subject to a qualified privilege and (ii) claimant failed to demonstrate the existence of a triable issue of fact by proffering evidentiary proof that the defendant was motivated by actual malice or ill will. Public officials not accorded the complete protection of an absolute privilege in a defamation action may still be subject to a qualified privilege applicable to oral or written communications made in good faith during the course of performing their official duties (Stukuls v State of New York, 42 NY2d 272, 278). As noted by the Third Department in Feldschuh v State of New York, (240 AD2d 914), statements to the press made by governmental representatives relating to governmental matters are subject to a qualified privilege. The Court sees no reason to exclude the report at issue herein from the protections provided other public statements involving the operations of State government. Once a qualified privilege attaches, summary judgment is appropriate where the claimant fails to proffer proof in evidentiary form establishing a triable issue of fact that the defendant acted with malice (Cosme v Town of Islip, 63 NY2d 908; Grier v Johnson, 232 AD2d 846; Hyer v Southside Hosp., 227 AD2d 592). As related previously herein, the claimant has failed to offer any proof other than innuendo, surmise and conjecture regarding malice in the preparation and dissemination of "The Best Bang For Their Buck". As a result, summary judgment dismissing the claim is appropriate rendering it unnecessary for the Court to address the other grounds for dismissal raised on the defendant's cross-motion. The cross-motion is granted and claimant's summary judgment motion is denied.

May 29, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 6, 2003;
  2. Affidavit of George Firth sworn to March 5, 2003, with exhibits;
  3. Notice of Cross-Motion dated April 2, 2003;
  4. Affidavit of Dennis M. Acton sworn to April 2, 2003 with exhibits;
  5. Affidavit of Ralph A. Rossi, II sworn to April 1, 2003 with exhibits;
  6. Affidavit of Charles Norfleet sworn to April 1, 2003 with exhibits;
  7. Affidavit of George Firth sworn to April 11, 2003 with exhibits;
  8. Affidavit of David Gibson sworn to April 10, 2003;
  9. Affidavit of Frank Lohr sworn to April 9, 2003 with exhibits;
  10. Affidavit of Dennis M. Acton sworn to April 16, 2003 with exhibits;
  11. Affidavit of Charles Norfleet sworn to April 16, 2003 with exhibits.