Opinion
# 2017-038-552 Claim No. 121137 Motion No. M-89849
08-16-2017
JOHN C. McPHILLIPS, MD v. THE STATE OF NEW YORK
OLIVER LAW OFFICE By: Lewis B. Oliver, Jr., Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General
Synopsis
Motion to dismiss claim as untimely granted. Claim for libel accrued on the date of initial publication by defendant and not on any subsequent date of republication.
Case information
| UID: | 2017-038-552 |
| Claimant(s): | JOHN C. McPHILLIPS, MD |
| Claimant short name: | McPHILLIPS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121137 |
| Motion number(s): | M-89849 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | OLIVER LAW OFFICE By: Lewis B. Oliver, Jr., Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 16, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim by a physician asserts two causes of action sounding in libel arising from statements allegedly made by Dr. Phyllis Harrison-Ross, Commissioner and Chairwoman of the Medical Review Board of the New York State Commission of Correction that were published within print and online stories by the New York Daily News on April 10, 2011. During the course of discovery and prior motion practice on this claim, it has been established that the allegedly libelous statements were originally stated in a memorandum that was dated November 30, 2010 that was authored by nurse Judge and addressed to Dr. Harrison-Ross in the context of an investigation and report into the death of an inmate who had been treated by claimant, that the memorandum was provided to an Assistant Attorney General (AAG) who was defending the State in federal litigation arising from the inmate's death, that the AAG provided a copy of the memorandum to the attorney for the plaintiffs in that litigation, and that the plaintiffs' attorney transmitted the memorandum to the Daily News. Claimant has made two prior motions to amend the claim, both of which have been denied by this Court. Defendant now moves to dismiss the claim and for summary judgment, which is opposed by claimant. For the reasons that follow, defendant's motion will be granted and the claim will be dismissed.
Claimant moved twice to amend the claim to avoid dismissal on untimeliness grounds, based upon an accrual date of November 30, 2010, the date of the Judge memorandum. Claimant's first motion to amend the claim sought to redefine the State's allegedly tortious conduct from the undated statements of Dr. Harrison-Ross directly to the Daily News to a "republication" of the statements by the AAG when he provided the memorandum to plaintiffs' attorney sometime prior to April 10, 2011. The motion was denied on the ground that the proposed amended claim was without merit because the AAG's production of the memorandum was absolutely privileged because it was shared within the scope of litigation to which it was pertinent (see McPhillips v State of New York, 42 Misc 3d 1222 [A] [Ct Cl, Dec. 17, 2013], affd 129 AD3d 1360 [3d Dept 2015]). Claimant's second motion to amend the claim sought to redefine defendant's tortious conduct as the actions of the nurse who authored the memorandum, and the accrual date as April 10, 2011 when claimant first learned of the statements that were published on that date by the Daily News. This motion, like claimant's first, was found lacking in merit because it sought to hold the State liable for the republication of statements from the memorandum by the Daily News without any allegation or proof that the Daily News published the contents of the memorandum under the authorization or upon the request of defendant (see McPhillips v State of New York, UID No. 2016-038-543 [Ct Cl, DeBow, J., July 8, 2016]). Thus, defendant's instant motion is addressed to the initial unamended claim.
Defendant's motion asserts that the claim fails to state a cause of action because the alleged defamation constitutes non-actionable opinions, the claim is untimely on jurisdictional and statute of limitations grounds, and that summary judgment is warranted because there are no triable issues of fact on the issue of defendant's liability. Claimant opposes the motion on the grounds that the statements in the memorandum were statements of fact, not opinion (see Oliver, Jr. Affirmation, ¶¶ 6-43), that claimant's causes of action accrued on April 10, 2011 when claimant first learned of defendant's libelous statements when they were republished by the Daily News (see id. ¶¶ 44-67).
These bases for dismissal were stated as the tenth and eleventh affirmative defenses, respectively, in defendant's verified answer to the claim (see Verified Answer, ¶¶ Twenty-Seventh, Twenty-Eighth), thereby preserving the defenses (see Court of Claims Act § 11 [c]; Sinacore v State of New York, 176 Misc 2d 1 [Ct Cl 1998]; Miles v City Univ. of N.Y., 126 AD3d 609 [1st Dept 2015]; CPLR 3211 [e]; Immediate v St. John's Queens Hosp., 48 NY2d 671 [1979]).
Claimant's request that this Court reconsider its prior decision finding that the AAG's production of the Judge memorandum to plaintiffs' attorney is absolutely privileged will not be addressed because (1) that request for affirmative relief is not requested in a motion pursuant to CPLR 2221, and, more importantly, (2) the issue of absolute privilege cannot be revisited by this Court because its decision has been affirmed by the Appellate Division (see McPhillips v State of New York, 129 AD3d 1360 [3d Dept 2015]).
That part of defendant's motion that challenges the Court's jurisdiction to entertain the claim will be addressed first. As defamation is an intentional tort, Court of Claims Act §§ 10 (3-b) and 11 (a) (i) require, inter alia, that a notice of intention to file a claim or the claim itself be served upon the Attorney General within 90 days after accrual of the claim. A timely served notice of intention will extend the time within which to serve and file the claim to one year after the date of accrual of a claim sounding in intentional tort (see Court of Claims Act § 10 [3-b]). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]). The jurisdictional viability of this claim rests exclusively upon its date of accrual which, as has been previously stated by this Court, is on the date of the first publication and not when a claimant learned of the alleged libelous statements (see McPhillips v State of New York, UID No. 2016-038-543, citing Seymour v New York State Elec. & Gas Corp, 215 AD2d 971, 972 [3d Dept 1995]). The causes of action set forth in the claim were first published on November 30, 2010, the date of the Judge memorandum. The notice of intention was served on the Attorney General on June 6, 2011 (see Rotondi Affirmation, ¶ 26), more than 90 days thereafter, and accordingly, it did not extend by one year the time within which to file and serve the claim. Further, even if it did, or if the jurisdictional defense was not raised or was waived, the claim was not served on the Attorney General until April 6, 2012, well more than one year after the accrual of the claim on November 30, 2010. Thus, the claim is jurisdictionally defective as untimely served (see Court of Claims Act § 10 [3-b]), and the claim was also commenced beyond the one-year statute of limitations for a claim sounding in the intentional tort of libel as set forth in CPLR 215 (3).
As noted in the Court's prior decision and order, defendant cannot be held liable for the republication of the statements in the Daily News, absent allegations that the Daily News published the statements under the authorization or upon the request of defendant (see McPhillips v State of New York, UID No. 2016-038-543), and thus, the proper accrual date is the date that the Judge memorandum was authored.
Claimant's contention that the claim did not accrue until his damages were reasonably ascertainable is not compelling. Although that principle is stated in Augat v State of New York (244 AD2d 835 [3d Dept 1997]), claimant has not cited any precedent applying that principle in the context of a defamation action, and the Court has found none, and it would be counter-intuitive to do so, as the damages caused by a defamatory statement would almost never be reasonably ascertainable on the date that the statement was published.
Inasmuch as the claim is jurisdictionally defective, the parties' arguments whether the statements written in the memorandum were non-actionable opinion and on the issue of summary judgment need not be addressed. Accordingly, it is
ORDERED, that defendant's motion to dismiss the claim is GRANTED, and claim number 121137 is DISMISSED.
August 16, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 121137, filed April 6, 2012; (2) Verified Answer, filed May 14, 2012; (3) Notice of Motion to Dismiss, dated January 27, 2017; (4) Affirmation of Anthony Rotondi, AAG, in Support of Motion to Dismiss and for Summary Judgment, dated January 27, 2017, with Exhibits A-J; (5) Affirmation of Lewis B. Oliver, Jr., Esq., dated April 5, 2017, with Exhibits; (6) Reply Affirmation of Anthony Rotondi, AAG, in Support of Motion, dated May 11, 2017.