Firth v. State of NY

FRANCIS T. COLLINS, J. The motion of the defendant for an order pursuant to CPLR 3212 dismissing the claim as time barred pursuant to CPLR 215 is granted. Claimant was employed by the Department of Environmental Conservation (DEC) from October 29, 1964 to January 31, 1997 and during the last 13 years of his employment held the position of Director of the Division of Law Enforcement (DLE). DEC is the agency charged by ECL 3-0301 (1) to "carry out the environmental policy of the state" which is "to conserve, improve and protect its natural resources and environment and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well being" (ECL 1-0101 [1]). The DLE is comprised of approximately 300 members charged with the responsibility of enforcing the Environmental Conservation Law. DEC divides the State into nine regions within which the members of DLE are deployed. Each region has a DLE office staffed by a captain, a lieutenant, and, in some cases, an environmental conservation officer (ECO). Most ECOs work out of their homes and are assigned to patrol specific areas. In the course of discharging their responsibilities, ECOs are often called upon to kill wildlife and to make arrests for violations of the Environmental Conservation Law. From 1981 to 1990, DLE members were armed with Smith & Wesson .357 magnum revolvers. During the late 1980s, claimant recommended to his superiors at DEC that the members of DLE be equipped with 9 mm. semi-automatic pistols in place of the Smith & Wesson revolvers. The recommendation was approved and in January of 1990, through the New York State Office of General Services, DEC invited bids for 9 mm. semi-automatic pistols. Northeast Gun & Supply Co., Inc. (Northeast) submitted the winning bid and entered into a contract to supply 305 Glock Model 17 semi-automatic 9 mm. pistols at a cost of $315.77 per weapon and to accept 333 Smith & Wesson or Colt revolvers as trade-ins together with other miscellaneous weapons and equipment. Thereafter, the number of guns to be supplied was modified to the content of transmitted communications, as opposed to the more active involvement undertaken by a telegraph company which may justify the imposition of liability in a defamation cause of action. A similar analysis was undertaken and a similar result reached with regard to Prodigy's sponsorship of the bulletin board upon which the offending electronic messages were posted. Applying established rules of law applicable to the accrual of defamation actions in this State requires a finding that the one-year Statute of Limitations began to run on December 16, 1996, the date of the Report's original publication and the date when the Report was first made available on the Internet where it has remained unaltered to this date. Concerns regarding the rapid pace of changes in the way information is disseminated, the desire to avoid multiplicity of suits and the need to give effect to relevant Statutes of Limitation which gave rise to the single publication rule enunciated in Gregoire v Putnam's Sons (298 NY 119, supra) are no less germane today than at the time of the rule's adoption. This court sees no rational basis upon which to distinguish publication of a book or report through traditional printed media and publication through electronic means by making a copy of the text of the Report available via the Internet. While the act of making the document available constitutes a publication, in the absence of some alteration or change in form its continued availability on the Internet does not constitute a republication acting to begin the Statute of Limitations anew each day. Applying the single publication rule to the facts of this case requires that the defendant's dismissal motion be granted. [*] The sixth affirmative defense referring to a failure to serve a claim or notice of intention within 90 days of the accrual of the claim is of no value to the defendant as a notice of intention was in fact timely served within 90 days of the accrual date.