Firth v. State of New York

• Decision Date: 11 October 2001
• Citation: 731 N.Y.S.2d 244,287 A.D.2d 771
• Court: New York Supreme Court — Appellate Division
• Parties: GEORGE FIRTH, Appellant,<BR>v.<BR>STATE OF NEW YORK, Respondent.

287 A.D.2d 771

731 N.Y.S.2d 244

GEORGE FIRTH, Appellant,

v.STATE OF NEW YORK, Respondent.

Carpinello, J.

Decided October 11, 2001.

Crew III, J. P., and Rose J.

Carpinello, J.

Claimant, employed by the Department of Environmental Conservation as Director of the Division of Law Enforcement, was responsible for weapons acquisitions for a three-year period in the early 1990s. On December 16, 1996, he was criticized in an Office of the Inspector General report, entitled "The Best Bang for Their Buck," for his alleged improper management of weapons and the alleged improper sale and/or disposition of surplus handguns. The report was posted on the State's Internet website. Although he timely filed a notice of intention to file a claim against the State alleging defamation, he never filed suit until March 18, 1998. The Court of Claims ultimately dismissed his claim as time barred, prompting this appeal.

The Statute of Limitations for defamation is one year (see, CPLR 215 [3]). In support of its motion for dismissal on Statute of Limitations grounds, the State established that the publication of the allegedly defamatory statements occurred on December 16, 1996 and that the instant claim was not filed until March 18, 1998, thus rendering it untimely. In our view, these initial submissions were sufficient to meet the State's prima facie burden as the proponent for summary judgment. In opposition, claimant filed a 29-page affidavit in which he defended the propriety of his conduct and his professional reputation from the allegedly unfounded attacks contained in the Inspector General report. Notably, however, nowhere in that affidavit does he address the issue of whether his claim is, in fact, time barred. It is well settled that the consequence of failing to respond to a fact set forth in motion papers is a deemed admission (see, Kuehne & Nagel v Baiden, 36 NY2d 539, 544). Thus, at that juncture, he failed to set forth admissible evidence to oppose the motion.

Prior to rendering a decision on the motion, however, the Court of Claims sua sponte directed the State to submit an affidavit from one with personal knowledge setting forth the date the report was placed on the Internet and the dates, if any, of any modifications to the text of the report. At this time, the court also gave claimant the opportunity to file "any affidavits or legal arguments" that he deemed appropriate in response to the State's submission. Thereafter, the State provided an affidavit from Thomas Ruller, an Education Department associate programmer analyst, who averred that he placed the report on the Internet on December 16, 1996 and that no subsequent modifications to the text of the report were made.^[1] In our view, this affidavit sufficiently addressed the court's specific concern and, along with the State's prior submissions, again satisfied its prima facie burden.

Although a door once closed may now have been reopened, it was still incumbent upon claimant to set forth evidence in admissible form sufficient to oppose the motion, or to establish by affidavit "that facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212 [f]). The only response to the State's additional submission was a letter from claimant's counsel in which he acknowledged that neither he nor his client had "any knowledge" of the posting of the report on the Internet and that "[w]e must presume that what has been said [in the Ruller affidavit] is accurate." Notwithstanding this acknowledgment, counsel speculates that the State's affiant could provide the history of any modifications to the State's website (as opposed to the text of the report itself). Without specifically requesting discovery, and without justifying his failure to have conducted discovery on this issue in the past,^[2] counsel states in this letter that "it is important that additional information be provided in order to present a complete picture of the State's internet activities." We find this response to be palpably inadequate to oppose summary judgment. Even if we were to consider this comment to be a "request" for additional discovery, it was properly denied by the Court of Claims.

"A motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party (see, CPLR 3212 [f]). However, the opposing party must make an evidentiary showing supporting this conclusion, mere speculation or conjecture being insufficient" (Pank v Village of Canajoharie, 275 AD2d 508, 509, citing Scofield v Trustees of Union Coll., 267 AD2d 651, 652 [emphasis supplied]). Claimant had a year and a half to conduct discovery in this case, a time period which he chose to consume by litigating such unimportant issues as whether the State's answer was properly verified^[3] and whether his own date of birth, Social Security number and address were proper subjects for a bill of particulars. When the Court of Claims sua sponte gave claimant a second opportunity to oppose summary judgment, he failed to submit any affidavits or to make any showing that the State's conduct during discovery prevented him from proffering sufficient facts to adequately oppose the motion. Since claimant had "ample opportunity to obtain the information [he] consider[ed] necessary to oppose a summary judgment motion[,] [t]here is no reason to delay judgment to enable [him] to engage in further discovery merely because [he] speculate[s] that [he] might discover something that will prove [his] case" (Allen v Vuley, 223 AD2d 868, 869, citing Plotkin v Franklin, 179 AD2d 746). To the extent that the dissent points to "record evidence" of a modification of the State's website as being sufficient to defeat summary judgment, we note that this "record evidence" was not before the Court of Claims on the motion for summary judgment, but rather was apparently submitted on a prior discovery dispute. More importantly, this "record evidence" makes reference only to a December 9, 1997 modification of a site "not ordinarily disclosed to the...