In this defamation action, claimant Michael C. Lueck seeks damages arising from publication of information in a New York State Police blotter that claimant had been arrested and charged with a felony when, in fact, he had not. Defendant now moves pursuant to CPLR 3211 to dismiss the claim, arguing that the claim fails to satisfy the particularity requirements for pleading a defamation action under CPLR 3016 (a), as well as the substantive pleading requirements of Court of Claims Act (CCA) § 11 (b). Claimant opposes the motion. For the reasons stated below, the motion is granted and the claim is dismissed.

When considering a motion to dismiss under CPLR 3211, the Court must "'accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d 169, 175 [2021], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). With respect to a motion pursuant to CPLR 3211 (a) (7) in particular, the Court's role is ordinarily limited to determining whether the claim states a cause of action (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). If a claimant "fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery," dismissal is warranted (Himmelstein, 37 NY3d at 175 [internal quotation marks omitted]).

Defamation is the making of "a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace" (Thomas H. v Paul B., 18 NY3d 580, 584 [*2][2012]). To prevail on a claim for defamation, it must be shown "that the defendant made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se" (Partridge v State of New York, 173 AD3d 86, 90 [3d Dept 2019] [internal quotation marks omitted]; see Bowen v Van Bramer, 205 AD3d 674, 674-675 [2d Dept 2022]). Moreover, under the "strict pleading requirements" for defamation claims imposed by CPLR 3016 (a), the pleading must set forth "'the particular words'" alleged to be defamatory (Jackie's Enters., Inc. v Belleville, 165 AD3d 1567, 1570 [3d Dept 2018], quoting CPLR 3016 [a]), and must also state "'the time, place, and manner of the allegedly false statements and [specify] to whom such statements were made'" (id., quoting Wegner v Town of Cheektowaga, 159 AD3d 1348, 1349 [4th Dept 2018]; see Tsatskin v Kordonsky, 189 AD3d 1296, 1299 [2d Dept 2020]; Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). Courts have construed CPLR 3016 (a) to mean that the pleading must relay the defendant's defamatory words "'in haec verba,'" i.e., verbatim (Wadsworth v Beaudet, 267 AD2d 727, 729 [3d Dept 1999], quoting Conley v Gravitt, 133 AD2d 966, 968 [3d Dept 1987]).

The claim here alleges that on May 8, 2021, "a newspaper of general circulation" called the Daily Freeman published the following paragraph:

"Michael C. Lueck, 47, of Red Hook, was arrested by state police at Claverack in the Village of Red Hook at 10:30 a.m. Friday, May 7, and charged with unlawful surveillance, a felony, stemming from an alleged incident reported on Jan. 3, 2021, in the town of Livingston. Lueck was released with a ticket for Livingston Town Court. Further information was not immediately available" (Claim, ¶ 4).

Two days later, the Daily Freeman printed a retraction due to "incorrect information provided by state police" and stated that claimant had not been arrested and charged with a felony (id. ¶ 6). With respect to the State Police, however, the claim asserts only that "one or more members of the New York State Police" released an "initial blotter item which erroneously claimed both that [claimant] had been arrested and charged with a felony" (id. ¶ 7), and that this blotter item was "negligently disseminated to news organizations" which then "predictably" published it (id. ¶ 8). The claim further alleges that claimant is the owner of a family restaurant in Red Hook, and that the publication of the blotter item caused him to suffer lost profits and mental anguish.

The claim must be dismissed because it is insufficiently pled in several fundamental respects. Initially, the claim fails to state the place and manner of the defamatory statement. The claim's vague allegations that a "blotter item" was "released" and "disseminated" to "news organizations" are insufficient in that regard (see Dobies v Brefka, 273 AD2d 776, 777 [3d Dept 2000], lv dismissed 95 NY2d 931 [2000]; Casciaro v State of New York, UID No. 2018-015-167 [Ct Cl, Oct. 3, 2018] [Collins, J.]). The claim does not specify how or where the blotter item was published, or the manner in which it was provided to the Daily Freeman and other news organizations by the State Police or any of its employees. Claimant explains in opposition to the motion that the defamatory statements were contained in a State Police blotter report which was published on the State Police newsroom website and accessible to the public (see Affirm in Opp, at 5; NYSP Newsroom, https://troopers.ny.gov/nysp-newsroom), but this information comes too late and is insufficient to overcome these pleading defects (see Jackie's Enters., 165 AD3d at 1571; Wegner, 159 AD3d at 1349). These omissions with respect to the place and manner of the blotter's publication also render the claim insufficiently particularized under Court of Claims Act [*3]§ 11 (b), which requires, among other things, that the claim state "the place where such claim arose [and] the nature of same" (CCA § 11 [b]). Beyond the vague and conclusory allegations with respect to the State Police, nothing within the four corners of the claim provides any sufficiently specific indication of how the State was negligent (see Cendales v State of New York, 2 AD3d 1165, 1167-1168 [2003]; Clark v State of New York, 165 AD3d 1371, 1372 [3d Dept 2018], lv denied 33 NY3d 905 [2019]; Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998]). The claim's failure to satisfy these substantive pleading requirements thus deprives the Court of subject matter jurisdiction and provides an independent basis for dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 [2003]; Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013).

Defendant is also correct that the claim fails adequately to plead the "time when" the alleged statements were made and the claim arose, both for purposes of the pleading requirements for defamation actions under CPLR 3016 (a) as well as the jurisdictional requirements of CCA § 11 (b). The claim provides only the date that the Daily Freeman column was published; it does not state—as it must—the date of defendant's alleged negligent act, which is the date that the State Police blotter was published (see Sternberg v Wiederman, 225 AD3d 820, 822 [2d Dept 2024] [complaint dismissed for failure to provide date of defamatory statement under CPLR 3016 (a)]; Casciaro v State of New York, UID No. 2018-015-167 [Ct Cl, Oct. 3, 2018] [Collins, J.] [holding that claim failed to state time of defamatory statement under CPLR 3016 and CCA § 11 (b)]; McCabe v State of New York, UID No. 2004-015-413 [Ct Cl, June 24, 2004] [Collins, J.] [holding that claim failed to state the time when it arose for purposes of CCA § 11 (b) where it did not provide the "specific date when the allegedly defamatory communications took place"]; see generally Sacher v State of New York, 211 AD3d 867, 871-872 [2d Dept 2022]).

As claimant notes, the claim alleges that the Daily Freeman column was published on May 8, 2021, and the quoted language of the column describes claimant's arrest occurring on May 7. From this information, one might reasonably surmise that the police blotter was published on May 7 or May 8. But considering that the entire premise of the claim is that the Daily Freeman column is false because claimant was not arrested at all, there remains a possibility that the May 7 date provided by the Daily Freeman is erroneous. Indeed, the text of the claim omits the important context that, although claimant was undisputedly not arrested or charged with a felony, he had some kind of encounter with State Police and was ultimately charged with Harassment in the Second Degree, a violation (see Affirm in Opp, at 2; id., Exh 3). Claimant's own submissions further suggest that claimant was criminally charged earlier than May 7—the Daily Freeman column states that that the underlying incident occurred on January 3, 2021, and claimant was sent an appearance ticket pertaining to the charge from the Livingston Town Court dated April 16, 2021, nearly a month before the publication of the Daily Freeman column (see id., Exh 3). In any event, where, as here, the claim involves a "single incidence of negligence that occurred on a discrete date," recent authority from the Appellate Division has generally been unforgiving of even minor discrepancies in the date the claim arose when considering whether a claim meets the jurisdictional requirements of CCA § 11 (b) (Sacher, 211 AD3d at 872 [notice of intention deficient under section 11 (b) where it provided date of accident as October 15, 2016 when correct date was October 20, 2016]; see Matter of DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019] [notice of intention deficient where it provided date the claim arose as April 5, 2012 when correct date was April 3, 2012]). Claimant's [*4]only response to defendant's argument on this issue is to reiterate the date that the Daily Freeman column was published, which misses the point entirely (Affirm in Opp, at 7). And to the extent claimant's papers can be read to suggest that the State has not been prejudiced given the discovery that has occurred in this matter, it is well established that "[l]ack of prejudice to the State is immaterial and a court is without power to dispense with applicable jurisdictional requirements of law based upon its own concepts of justice" and, further, that jurisdictional defects "may not be cured by amendment" (DeMairo, 172 AD3d at 857).

Finally, the claim also does not set forth, verbatim, the allegedly defamatory statement made by defendant. As defendant correctly argues, the only defamatory words alleged to have been published by defendant are those contained in the State Police blotter that the Daily Freeman relied on in publishing its column. But the claim fails to specify the words used in the blotter, and claimant cannot rely on the Daily Freeman's paraphrasing of the blotter's allegedly defamatory statement to satisfy CPLR 3016's pleading requirements (see BCRE 230 Riverside LLC v Fuchs, 59 AD3d 282, 283 [1st Dept 2009]; see also Jackie's Enters., 165 AD3d at 1570; McManus v State of New York, UID No. 2014-044-535 [Ct Cl, Aug. 20, 2014] [Schaewe, J.]). To be sure, the circumstances of this case are unique.^[FN1] Given the general manner and format in which police blotter reports are published and reported on by local newspapers, it is unlikely that the Daily Freeman deviated from the information contained in the blotter.^[FN2] But claimant makes no such argument in opposition to the motion, and the claim does not expressly allege that the Daily Freeman copied statements from the blotter verbatim into its article or otherwise expressly indicate what the blotter entry stated or what information it included. Thus, under the governing appellate precedent which requires that a claim state the "exact" words used by the defendant, and because the claim here is not sufficiently clear as to what those words are, dismissal is also warranted on this additional ground (Jackie's Enters., 165 AD3d at 1570).

Accordingly, it is hereby

ORDERED that defendant's motion to dismiss (M-100684) is GRANTED and Claim No. 137182 is DISMISSED in its entirety.