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A closely divided appellate panel in upstate New York upheld dismissal of a defamation action against the state in a ruling last week that leaves unresolved the question of whether modification of a Web site where an offending report is posted constitutes republication. All five judges rejected the contention that the continuous violation doctrine can be employed to revive the statute of limitations each time a Web site is accessed. However, the 3-2 Appellate Division, 3rd Department, split on whether the state was properly granted summary judgment in Firth v. State, 88782. The case arises from a defamation claim brought by George Firth, former director of the Department of Environmental Conservation’s Division of Law Enforcement, who alleged that he was libeled in a report prepared by the Inspector General. Firth, an environmental police officer, was accused in the report of mismanagement in the sale and/or disposition of surplus handguns. The report, which alleged that Firth “knowingly tolerated repeated breaches of the law,” and said that he “falls short in every category” in matters of integrity, was posted on the state’s Web site. In what was apparently the first reported decision on the question, Court of Claims Judge Francis T. Collins held that in the absence of an alteration, the single publication rule rather than the continuing publication rule governs actions involving materials published on the Internet (706 NYS2d 835, [2000]). Accordingly, Judge Collins found that Firth’s action was barred by the one-year statute of limitations. The offending report was posted on Dec. 16, 1996, and Firth filed his claim on March 18, 1998. Judge Collins rejected Firth’s argument that each day the report remains on the Internet constitutes a new injury. However, he did direct the state to submit an affidavit listing the dates that the report was placed online and the dates of any alterations. The state provided an affidavit stating that there were no modifications after the initial posting on Dec. 16, 1996. SINGLE PUBLICATION RULE On appeal, the 3rd Department agreed with Collins that the single publication rule prevails. The court also upheld summary judgment for the state, observing that Firth had sufficient time to conduct discovery, and squandered that time “by litigating such unimportant issues as whether the State’s answer was properly verified and whether his own date of birth, Social Security number and address were proper subjects for a bill of particulars.” Additionally, the majority said through Justice Anthony J. Carpinello that when Collins gave Firth a second opportunity to oppose summary judgment, he failed to make any showing that the state had prevented timely filing by frustrating his discovery efforts. Joining the majority opinion were Justices D. Bruce Crew III and Robert S. Rose. Justice Karen K. Peters dissented in an opinion joined by Justice John A. Lahtinen. In dissent, Peters said the record raises an issue of fact on whether a modification of the state’s Web site “from which this report could be accessed would constitute a republication which could prevent the dismissal of this action on timeliness grounds.” Justice Peters said the majority “prematurely seizes upon the single publication rule,” which has been found to not apply to the marketing of a paperback version of a hardcover book when changes were made to the cover, the title and copyright pages and the identifying number assigned by the Library of Congress. She said that absent further information, it remains unresolved whether modifications to the state’s Web site would indicate a deliberate republication that resurrects liability otherwise extinguished by the Statute of Limitations. Appearing were Carl G. Dworkin of Albany for Firth, and Assistant Attorney General Frank K. Walsh for the state of New York.

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