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August 10, 2023

Concerning an action to recover damages from a co-worker for alleged defamation

The Plaintiff, a tenured professor at a University, commenced this action against the Respondents, including a named professor [Professor] at the University. Plaintiff alleged that Professor defamed him in course of an investigation of Plaintiff conducted by the University and sought damages.

Citing Porges v Weitz, 205 AD3d 13, the Appellate Division said "The elements of a cause of action [to recover damages] for defamation are:

(a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace;

(b) published without privilege or authorization to a third party;

(c) amounting to fault as judged by, at a minimum, a negligence standard; and

(d) either causing special harm or constituting defamation per se".

The Appellate Division, however, noted:

1. "An allegedly defamatory statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned", citing Braunstein v Day, 195 AD3d at 589-590 [internal quotation marks omitted]", see Stega v New York Downtown Hosp., 31 NY3d 661; and

2. A "common interest" privilege "extends to a communication made by one person to another upon a subject in which both have an interest", citing Liberman v Gelstein, 80 NY2d 429.

The court then opined that to defeat this qualified privilege, "the plaintiff may show either common-law malice, i.e., spite or ill will, or may show actual malice, i.e., knowledge of falsehood of the statement or reckless disregard for the truth".

Here, said the court, Professor established, prima facie, "that the alleged defamatory statements she made in the course of the investigation into the allegations against the Plaintiff by [University] were entitled to a qualified common interest privilege." Further, opined the court, "Plaintiff failed to raise a triable issue of fact with respect to whether Professor's statements were motivated by either common-law malice or actual malice."

In addition, contrary to the Plaintiff's contention, the Appellate Division noted the Plaintiff did not demonstrate how further discovery might reveal the existence of material facts, currently within the exclusive control of Respondents', which would warrant the denial of the Respondents' motion for summary judgment.

Accordingly, the Appellate Division held "the Supreme Court properly granted the Respondents' motion for summary judgment dismissing the complaint.

Click HERE to access the Appellate Division's decision posted on the Internet.

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com