Opinion
# 2016-038-543 Claim No. 121137 Motion No. M-87929
07-08-2016
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
Claimant's second motion to amend a claim sounding in defamation is denied. Absent allegations that the republication of the offending statements by the Daily News was authorized or requested by defendant, no cause of action for defamation is stated against defendant, and thus, the motion to amend the claim is denied. Further, the claim would be timely only if it accrued after March 18, 2011, and the proposed amended claim alleges that defendant's employee wrote the offending statements in November 2010, at which time the claim for defamation against defendant accrued. "Republication" of the offending statements by the Daily News in April 2011, and claimant's ignorance of the statements prior to the republication do not provide the basis for a later accrual date nor toll or otherwise extend the November 2010 accrual of the claim for defamation.
Case information
| UID: | 2016-038-543 |
| 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-87929 |
| 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: | July 8, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant is a physician who has filed this claim alleging that he was defamed by defendant when an article was published in the New York Daily News which included certain negative statements about claimant that were attributed to a State official. The pending claim alleges that the source of the statements was Dr. Harrison-Ross, that she made the allegedly defamatory statements to a Daily News reporter on April 10, 2011, and that the Daily News published an article containing those statement on that same day. After learning that these factual allegations were incorrect, claimant moved to amend the claim, which motion was denied by this Court (see McPhillips v State of New York, 42 Misc 3d 1222[A] [Ct Cl 2013], affd 129 AD3d 1360 [3d Dept 2015], lv to appeal dismissed 26 NY3d 976 [2015]). The proposed amended claim that was submitted on that motion included allegations that the offending statements were initially set forth in a memorandum to Dr. Harrison-Ross that was prepared on November 30, 2010 by Janet Judge, R.N. (the "Judge Memo"), and that the Judge Memo came into possession of Assistant Attorney General (AAG) Bauman who passed it on to Attorney Buckvar. Buckvar, a private attorney who was opposing AAG Bauman in federal litigation that was related to the incident underlying the Judge Memo, passed the Judge Memo along to the Daily News (see McPhillips v State of New York, 42 Misc 3d 1222[A], at *3; 129 AD3d, at 1361). The Appellate Division, Third Department affirmed this Court's denial of claimant's motion to amend the claim, on the ground that the proposed amendments to the claim had no merit because AAG Bauman's disclosure of the Judge Memo to Attorney Buckvar was "entitled to [the shield of] absolute privilege because it occurred within the scope of a judicial proceeding and was pertinent thereto" (id., 42 Misc 3d 1222[A], at *7; see 129 AD3d, at 1362).
The Appellate Division, Third Department has also affirmed Supreme Court's dismissal of claimant's legal malpractice action against AAG Bauman (see McPhillips v Bauman, 133 AD3d 998 [3d Dept 2015], lv denied 27 NY3d 901 [2016]).
Now before the Court is claimant's second motion to amend the claim, which seeks to shift the focus of the factual allegations from Dr. Harrison-Ross (as in the initial pending claim) and from AAG Bauman (as in the first proposed amended claim) to the actions of Nurse Janet Judge (see Second Amended Verified Claim, Oliver Affirmation, Exhibit 5). The second proposed amended claim alleges that the claim is timely because it accrued on April 10, 2011, when the allegedly defamatory statements in the Judge Memo were published by the Daily News (see id., ¶¶ 69, 97).
The jurisdictional necessity for claimant to identify an accrual date no earlier than March 18, 2011 - 90 days prior to claimant's service of a notice of intention to file this claim - was discussed in this Court's decision on claimant's first motion to amend the claim (see McPhillips v State of New York, 42 Misc 3d 1222[A], at *3-*4).
Claimant argues the cause of action for defamation did not accrue until claimant learned of the statements as published in the Daily News on April 10, 2011, and that the absolute privilege afforded to the actions of AAG Bauman do not apply to the Judge Memo because Nurse Judge did not prepare the memorandum in the course of or in preparation for litigation. Claimant further contends that because the allegedly defamatory statements were made with actual malice, they were not pertinent and material to the investigation into claimant's treatment of the deceased inmate that underlies this proceeding (see Memorandum of Law in Support of Claimants [sic] Second Motion to Amend Claim, dated May 5, 2016). Defendant opposes claimant's instant motion.
It bears repeating that leave to amend a claim should be freely given (see CPLR 3025 [b]), but that a motion for leave to amend a claim should be denied if the proposed amendment is devoid of merit or is not viable (see Trupia v Lake George Central School Dist., 62 AD3d 67, 68 [3d Dept 2009], affd 14 NY3d 392 [2010]; see also Waddell v Boyce Thompson Institute for Plant Research, Inc., 92 AD3d 1172, 1174-1175 [3d Dept 2012], lv denied 19 NY3d 805 [2012]; McPhillips v State of New York, 129 AD3d, at 1362).
The proposed amended claim that is submitted with claimant's instant motion alleges that the Judge Memo was dated and sent by Judge to Dr. Harrison-Ross on November 30, 2010, and that it contained defamatory statements about claimant (see Oliver Affirmation, Exhibit 5, ¶ 33), that the Judge Memo was disclosed by AAG Bauman to Attorney Buckvar at some point during the federal litigation (see id., ¶ 34), who then shared the Judge Memo with the Daily News (see id., ¶ 39), which printed the defamatory statements on April 10, 2011. Specifically, the proposed amended claim alleges that:
"The statements in the Judge memorandum dated November 30, 2010 were subsequently republished by Assistant Attorney General Wesley E. Bauman, Esq., when he provided the memorandum to Morton Buckvar, the attorney for [plaintiffs in the federal action]. These statements were again published in the New York Daily News newspaper on April 10, 2011 and the on-line version and were read by a hundreds of thousands of New Yorkers"
(id., ¶¶ 41, 74 [emphasis added]). The proposed amended claim alleges that it accrued on April 10, 2011, thus clearly seeking to hold defendant liable for the republication of Judge's alleged defamatory statements by the Daily News and not for the original publication of the statements in or about November 2010. Claimant offers no authority or persuasive argument that the Daily News article constituted an extension of the original publication as opposed to a repetition or republication of it.
The Court of Appeals has recently reiterated:
" 'It is too well settled to be now questioned that one who utters a slander, or prints and publishes a libel, is not responsible for its voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no control and who thereby make themselves liable to the person injured, and that such repetition cannot be considered in law a necessary, natural and probable consequence of the original slander or libel' "
(Geraci v Probst, 15 NY3d 336, 342 [2010], quoting Schoepflin v Coffey, 162 NY 12, 17 [1900] [emphasis added]). Thus, defendant may be liable for the repetition of Judge's alleged defamatory words only if defendant's agents authorized or requested the Daily News to repeat the Judge Memo's defamatory statement. Inasmuch as the proposed amended claim is lacking such an allegation, it fails to state a cause of action against defendant for the republication by the Daily News, and thus, the proposed amended claim lacks merit. Accordingly, claimant's motion to amend the claim will be denied.
To the extent that claimant seeks to reargue the issue of absolute privilege attendant to AAG Bauman's publication of the Judge Memo to Attorney Buckvar, such arguments have been addressed and decided adversely to claimant by this Court and affirmed by the Appellate Division, and will not be considered on this motion. Nor can claimant escape the effect of the prior holdings regarding the absolute privilege that attached to AAG Bauman's conduct by amending the claim to allege that the defamatory conduct was committed by Nurse Judge, as the Appellate Division has already recognized that :
"[C]laimant asserts that the memorandum was prepared by a nonparticipant to the litigation which removes it from the protection of the absolute privilege; however, this contention ignores that claimant's action is grounded in the republication of the alleged defamatory statement by the AAG, whose statements are afforded the protection"
(McPhillips v State of New York, 129 AD3d, at 1362 [emphasis added]).
Similarly, although the proposed amended claim seeks to pin liability on defendant for the acts of Nurse Judge, it seeks to avoid a jurisdictional timeliness defect by asserting that the claim did not accrue until the republication by the Daily News. Claimant argues that his claim against defendant arising from Judge's allegedly defamatory statements did not accrue until the statements were published in the Daily News because it was only then that he could fully ascertain his damages (see Claimant's Memorandum of Law, pp. 36-37). It is unclear whether this argument seeks to avoid the application of the republication rule as stated in Geraci, or whether it is asserted to avoid the fatal jurisdictional defect in timeliness that would defeat a defamation claim that accrued on November 30, 2010. To the extent it is the latter, it is without merit because a cause of action for defamation accrues on the date of the first publication and not when a plaintiff/claimant learns of the alleged defamatory statements (see Seymour v New York State Elec. & Gas Corp, 215 AD2d 971, 972 [3d Dept 1995]). Thus, any cause of action based upon Judge's conduct as now set forth in the proposed amended claim (see Oliver Affirmation, Exhibit 5, ¶¶ 39, 42, 53-54, 56-61, 63-68, 75, 84-85, 87-89, and 91-96) accrued on or about November 30, 2010. Claimant offers no authority, and the Court finds none, that contradicts Seymour by holding that a cause of action for defamation against the party who initially made a statement that is subsequently republished by a third party does not accrue until the defamed individual learns of the defamatory statement by way of the republication.
To the extent that claimant offers additional arguments in support of the instant motion to amend the claim, including claimant's extensive argument that Nurse Judge is not protected by the absolute privilege in litigation that attached to AAG Bauman (see Claimant's Memorandum of Law, pp. 49-67), such contentions have been considered but need not be discussed in light of the conclusion that the proposed amended claim fails to state a cause of action based upon her conduct.
Finally, that branch of claimant's motion that requests an order compelling defendant to respond to claimant's discovery demands will be denied as premature. To the extent that discovery on the pending claim has been stayed pending the resolution of claimant's motions to amend the claim, it may now proceed.
Accordingly, it is
ORDERED, that claimant's motion number M-87929 is DENIED.
July 8, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Verified Claim No. 121137, filed April 6, 2012; (2) Verified Answer, filed May 14, 2012; (3) McPhillips v State of New York (42 Misc 3d 1222[A] [Ct Cl 2013], affd 129 AD3d 1360 [3d Dept 2015], lv dismissed 26 NY3d 976 [2015]), and papers considered therewith; (4) Notice of Motion to Amend Claim Pursuant to CPLR 406 and 3025, dated January 6, 2016; (5) Affirmation of Lewis B. Oliver, Jr., Esq., in Support of Motion to Amend Claim pursuant to CPLR 406 and 3025, dated January 6, 2016, with Exhibits 1-5; (6) Affirmation of Anthony Rotondi, AAG, in Opposition to Motion to Amend the Claim, dated January 27, 2016; (7) Claimant's Memorandum of Law in Support of Claimants [sic] Second Motion to Amend Claim, dated May 5, 2016.