Opinion
# 2012-039-305 Motion No. M-80984
05-08-2012
PHILLIPS v. STATE OF NEW YORK
Synopsis
Movant's motion for permission to file a late claim is denied. The Court is without authority to grant the relief sought, as the relevant statute of limitations has expired. Case information
UID: 2012-039-305 Claimant(s): RALPH BUCK PHILLIPS Claimant short name: PHILLIPS Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-80984 Cross-motion number(s): Judge: James H. Ferreira Claimant's attorney: Ralph Buck Phillips, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Douglas R. Kemp Assistant Attorney General Third-party defendant's attorney: Signature date: May 8, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On January 26, 2012, movant, an inmate at the Clinton Correctional Facility in Dannemora, New York, filed with the Court a notice of motion to file a late claim, accompanied by a proposed claim. In the proposed claim, movant seeks damages for defamation allegedly committed by an employee of defendant. Specifically, he alleges that a State police officer made false and misleading statements on a television show concerning the facts underlying movant's criminal conviction. In an affidavit accompanying the motion, movant also seeks permission to proceed as a poor person pursuant to CPLR 1101 and appointment of counsel. Defendant opposes granting the relief sought.
The Court is "vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]; see Langner v State of New York, 65 AD3d 780, 782-783 [2009]), so long as the applicable statute of limitations set forth in CPLR article 2 has not expired (Court of Claims Act § 10 [6]). Movant's proposed defamation cause of action alleges an intentional tort and is subject to a one-year statute of limitations (see CPLR 215 [3]; Wilson v Erra, 94 AD3d 756,756 [2012]). A cause of action alleging defamation accrues for statute of limitations purposes "on the date the offending material is first published" and not upon a plaintiff's discovery of the publication (Nussenzweig v diCorcia, 9 NY3d 184, 188 [2007]; see Teneriello v Travelers Cos., 226 AD2d 1137, 1137-1138 [1996], lv denied 89 NY2d 801 [1996]). In the proposed claim, movant states that the offending television show originally aired on April 2, 2010. As this motion was filed in January 2012, over one year after that date, the relevant statute of limitation has expired and the Court is without authority to grant the relief sought (see Court of Claims Act § 10 [6]).
The Court notes that an exception to the so-called "single publication rule" may be applied where the material is republished. "Republication, retriggering the period of limitations, occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely 'a delayed circulation of the original edition' " (Firth v State of New York, 98 NY2d 365, 371 [2002], quoting Rinaldi v Viking Penguin, 52 NY2d 422, 435 [1981]; accord Hoesten v Best, 34 AD3d 143, 150 [2006]). Courts have held that the rebroadcast of a defamatory television program gives rise to a new cause of action sounding in defamation (see Lehman v Kornblau, 12 Misc 3d 1, 3 [App Term, 2d Dept 2006]; Lehman v Discovery Communications, Inc., 332 F Supp 2d 534, 539 [ED NY 2004]; see also Restatement [Second] of Torts § 577A, Comment d). Here, although movant states in the proposed claim that the episode "has been re-broadca[s]ted since April 2, 2010" (Proposed Claim ¶ 9), he has not provided the date of any alleged rebroadcast or rebroadcasts. Thus, the Court cannot discern from the proposed claim whether a new limitations period was triggered by a rebroadcast of the television episode and, if so, whether the motion was filed within a year of the rebroadcast date. The Court also cannot discern from the proposed claim whether 90 days have elapsed since any alleged rebroadcast, such that a late claim application is necessary (see Court of Claims Act § 10 [3-b]).
In any event, even if the Court had the authority to grant the relief sought, it would deny the motion. In deciding whether to grant an application to file a late claim, the Court is required to consider
"among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy" (Court of Claims Act § 10 [6]).
"No one factor is deemed controlling, nor is the presence or absence of any one factor dispositive" (Broncati v State of New York, 288 AD2d 172, 173 [2001]; see Matter of Smith v State of New York, 63 AD3d 1524, 1524 [2009]). The Court has broad discretion to grant or deny a late claim motion following consideration of the statutory factors (see Matter of Brown v State of New York, 52 AD3d 1136, 1136 [2008]).
Regarding the reasons for the delay in filing the claim, movant states that he is confined in solitary confinement, has no access to "television, radio, DVD, computers, etc." and all of his mail, including his legal mail, is censored (Affidavit in Support of Motion ¶ 2). While the fact of movant's confinement in a correctional facility is not an acceptable excuse for the delay (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [2006]; Duberry v State of New York, UID # 2008-030-584, Claim No. None, Motion No. M-75662, Scuccimarra, J. [Dec. 15, 2008]), "[i]f the conditions of a prisoner's confinement interfere in any substantial way with his [or her] ability to effectuate his [or her] legal rights, the court must take this into consideration in judging the excusability of the delay in filing" (Plate v State of New York, 92 Misc 2d 1033, 1038 [Ct Cl 1978]). The Court finds that movant's lack of access to television or other media interfered with his ability to pursue this claim and constitutes a reasonable excuse for his failure to file the claim within 90 days of the airing of the broadcast. The Court notes, however, that, despite learning of the facts underlying the claim in January 2011, movant did not file this motion until approximately one year later. He has failed to provide any excuse for this delay. Thus, this factor weighs only slightly in movant's favor.
Other factors to be addressed - whether defendant had notice of the essential facts constituting the claim, whether defendant had an opportunity to investigate the circumstances underlying the claim and whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant - are interrelated and will be considered together. Movant has submitted no evidence establishing that defendant had actual knowledge of the facts constituting movant's claim and an opportunity to investigate the circumstances underlying the claim. Although the Court does not believe that defendant's ability to investigate the claim will be impeded to its prejudice, these factors, upon balance, favor defendant. Additionally, it appears that movant has an alternative remedy available, namely the commencement of an action against the company producing the television show. This factor also favors defendant.
Finally, whether the proposed claim has the appearance of merit is an important factor to be considered, as it would be futile to permit a meritless claim to proceed (see Ortiz v State of New York, 78 AD3d 1314, 1314-1315 [2010], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011]; Savino v State of New York, 199 AD2d 254, 254-255 [1993]). "To be meritorious, a claim must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444 [2008] [citation omitted]; see Dippolito v State of New York, 192 Misc 2d 395, 396 [2002]). In order to set forth a cause of action for defamation, claimant must allege (1) that defendant published a false statement to a third party; (2) defendant published said statement without authorization or privilege; (3) fault, judged at a minimum by a negligence standard; and (4) special harm or defamation per se (see Roche v Claverack Coop. Ins. Co., 59 AD3d 914, 916 [2009]; Salvatore v Kumar, 45 AD3d 560, 563 [2007], lv denied 10 NY3d 703 [2008]). Moreover, a pleading in an action for defamation must set forth the particular words complained of (see CPLR 3016 [a]; Epifani v Johnson, 65 AD3d 224, 233 [2009]).
The Court concludes that movant has failed to establish that his proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6). The crux of movant's proposed claim appears to be that a State police officer "narrate[d]" the television show "to promote a conclusion which was substantially untrue" and knowingly provided a false and misleading account of a shooting that occurred on August 31, 2006 involving movant and two State Troopers (Proposed Claim ¶¶ 2, 3). Movant specifically identifies two parts of the broadcast that he alleges to be false or inaccurate: (1) the program's depiction of the uniforms worn by the State Troopers and (2) the way that the television program depicts the events leading up to the shooting. However, as defendant notes, claimant has completely failed to set forth the particular words uttered by the State police officer that are alleged to be defamatory as required by CPLR 3016 (a), and this failure defeats his cause of action for defamation (see Horbul v Mercury Ins. Group, 64 AD3d 682 [2009]). Moreover, movant did not plead any special damages in his proposed claim, and the alleged defamatory statements cannot properly be characterized as defamation per se because movant was convicted of crimes relating to the August 31, 2006 shooting incident (see e.g. Hahn v Konstanty, 257 AD2d 799, 800 [1999]). Accordingly, the Court finds that claimant's proposed cause of action for defamation lacks any appearance of merit.
Upon balance, the factors weigh against granting movant's application for permission to file a late claim, especially where the proposed claim lacks an appearance of merit. Thus, even if the Court had the authority to grant the relief sought, it would deny the motion.
Based upon the foregoing, it is ordered that movant's motion to file a late claim is denied. Movant's application for poor person relief and the appointment of counsel is also denied.
May 8, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated January 9, 2012;
2. Affidavit in Support of Motion sworn to January 17, 2012 with attachments; and
3. Affirmation in Opposition by Douglas R. Kemp, AAG affirmed on February 27, 2011 [sic].