80 N.Y.2d 429, *; 605 N.E.2d 344, **;
590 N.Y.S.2d 857, ***; 1992 N.Y. LEXIS 3900
Barnet L. Liberman, Appellant, v. Leonard Gelstein, Respondent.
No. 265
COURT OF APPEALS OF
80 N.Y.2d 429; 605 N.E.2d 344; 590 N.Y.S.2d 857; 1992 N.Y. LEXIS 3900;
21 Media L. Rep. 1079
October 22, 1992, Argued
November 24, 1992, Decided
PRIOR HISTORY:
Appeal, by permission of the Appellate Division of the Supreme Court in
the First Judicial Department, from an order of that Court, entered December
12, 1991, which affirmed an order of the Supreme Court (David B. Saxe, J.),
entered in New York County, insofar as it granted a motion by defendant Leonard
Gelstein for summary judgment dismissing plaintiff's complaint.
Liberman v Gelstein, 178 AD2d 215, affirmed.
DISPOSITION: Order affirmed, with costs.
CASE SUMMARY
PROCEDURAL POSTURE: The Appellate Division of the Supreme Court in the
First Judicial Department (
OVERVIEW: A landlord contended that a tenant, who was a member of the
tenant association's board of governors, committed slander per se when he
inquired of another association board member whether the landlord paid bribes
to the police, and when the tenant told building employees that the landlord
threatened to kill him and his family. The tenant invoked the common interest
qualified privilege against the bribe statement, and asserted that the threat
statements were either true, not defamatory or never made. The court held that
the threat statements were not slanderous per se. Because the landlord did not
prove special damages caused by the statements, that claim was properly
dismissed. The court also held that the bribe statement was slanderous per se
because it charged the landlord with the serious crime of bribery. The landlord
did not have to prove special damages to maintain that claim. However, the
court held that the tenant had a qualified privilege in making the statement
because it was a communication made by the tenant to another person on a
subject in which both had an interest. There was malice in the bribe statement
because it was not a public announcement.
OUTCOME: The court affirmed the dismissal of the landlord's slander
action on summary judgment.
CORE TERMS: malice, tenant, cause of action, slander, falsity, bribery,
landlord, common interest, board of governors, accusation, qualified privilege,
reckless disregard, common-law, defamation action, harassment, spite,
conversation, slanderous, privileged, colleague, cop, triable issue,
defamatory, actionable, issue of fact, serious crime, summary judgment,
reputation, profession, high degree
LexisNexis(R) Headnotes Hide
Headnotes
Torts > Defamation & Invasion of Privacy > Slander
HN1 Slander is not actionable unless the plaintiff suffers special
damage. Special damages contemplate the loss of something having economic or
pecuniary value. More Like This Headnote
| Shepardize: Restrict By Headnote
Torts > Defamation & Invasion of Privacy > Slander
HN2 The four established exceptions to the rule that slander is not
actionable unless the plaintiff suffers special damage consist of statements:
(1) charging plaintiff with a serious crime; (2) that tend to injure another in
his or her trade, business or profession; (3) that plaintiff has a loathsome
disease; or (4) imputing unchastity to a woman.
More Like This Headnote | Shepardize: Restrict By Headnote
Torts > Defamation & Invasion of Privacy > Slander
HN3 When statements fall within one of the "slander per se"
categories, the law presumes that damages will result, and they need not be
alleged or proven. More Like This
Headnote | Shepardize: Restrict By Headnote
Torts > Defamation & Invasion of Privacy > Absolute Privileges
Torts > Defamation & Invasion of Privacy > Qualified
Privileges
HN4 When compelling public policy requires that the speaker be immune
from suit, the law affords an absolute privilege, while statements fostering a
lesser public interest are only conditionally privileged. More Like This Headnote | Shepardize:
Restrict By Headnote
Torts > Defamation & Invasion of Privacy > Qualified
Privileges
HN5 The shield provided by a qualified privilege is dissolved if a
plaintiff demonstrates that the defendant spoke with "malice." More Like This Headnote | Shepardize:
Restrict By Headnote
Hide Headnotes / Syllabus
HEADNOTES: Libel and Slander - Slander Per Se - Statement Charging
Serious Crime - Bribery as Serious Crime
1. In a defamation action commenced by plaintiff landlord against
defendant, a tenant in plaintiff's building who is on the board of governors of
the tenants' association, defendant's alleged statement that "[t]here is a
cop on the take from [plaintiff]" is slanderous per se since it charges a
serious crime--bribery. Thus, the alleged statement is actionable without the
need to establish special harm.
Libel and Slander - Slander Per Se - Statement Charging Serious Crime -
Harassment Not Serious Crime
2. In a defamation action commenced by plaintiff landlord against
defendant, a tenant in plaintiff's building who is on the board of governors of
the tenants' association, defendant's alleged statement that "[plaintiff]
... threatened to kill me and my family" is not slanderous per se on the
ground that it falsely attributes to plaintiff the commission of the crime of
harassment. Harassment is a relatively minor offense in the New York Penal Law
and thus the harm to the reputation of a person falsely accused of committing
harassment would be correspondingly insubstantial; it is, therefore, not
slanderous per se to claim that someone committed harassment.
Libel and Slander - Slander Per Se - Statement Tending to Injure
Another in His or Her Business - Statement Charging Landlord with Harassment
3. In a defamation action commenced by plaintiff landlord against
defendant, a tenant in plaintiff's building who is on the board of governors of
the tenants' association, defendant's alleged statement that "[plaintiff]
... threatened to kill me and my family" is not slanderous per se as
tending to harm plaintiff in his business as a property owner since the
statement is unrelated to plaintiff's status as a landlord.
Libel and Slander - Privilege - Conditional "Common Interest"
Privilege
4. In a defamation action commenced by plaintiff landlord against
defendant, a tenant in plaintiff's building who is on the board of governors of
the tenants' association, defendant's alleged statement to a colleague on the
board of governors that "[t]here is a cop on the take from
[plaintiff]", although slanderous per se, falls within the "common
interest" privilege as a communication made by one person to another upon
a subject in which both have an interest. Defendant and his colleague were
members of the governing board of an association formed to protect the tenants'
interests. If plaintiff was in fact bribing the police so that his cars could
occupy spaces in front of the building, that would be inimical to those
interests. Thus, defendant had a qualified right to communicate his
suspicions--though defamatory of plaintiff--to his colleague.
Libel and Slander - Malice - Constitutional Standard - High Degree of
Awareness of Probable Falsity
5. In a defamation action commenced by plaintiff landlord against
defendant, a tenant in plaintiff's building who is on the board of governors of
the tenants' association, there is no triable malice issue under the
constitutional standard that would defeat the qualified "common
interest" privilege which attached to defendant's alleged statement to a
colleague on the board of governors that "[t]here is a cop on the take
from [plaintiff]". Under the constitutional malice standard, the plaintiff
must demonstrate that the conditionally privileged statements were made with a
high degree of awareness of their probable falsity. Here, although defendant
admitted that he did not know whether the bribery charge was true, there is a
critical difference between not knowing whether something is true and being highly
aware that it is probably false. Only the latter will establish reckless
disregard in a defamation action. Moreover, plaintiff's mere characterization
of the sources of defendant's statement as "disgruntled" building
employees is insufficient to raise a triable issue.
Libel and Slander - Malice - Common-Law Standard - Spite or
6. In a defamation action commenced by plaintiff landlord against
defendant, a tenant in plaintiff's building who is on the board of governors of
the tenants' association, there is no triable malice issue under the common-law
standard that would defeat the qualified "common interest" privilege
which attached to defendant's alleged statement to a colleague on the board of
governors that "[t]here is a cop on the take from [plaintiff]". Under
the common-law malice standard, malice means spite or ill will that is
referable not to defendant's general feelings about plaintiff, but to the
speaker's motivation for making the defamatory statements. A triable issue is
raised only if a jury could reasonably conclude that malice was the one and
only cause for the publication. Here, defendant did not make a public
announcement of his suspicions--from which an inference could be drawn that his
motive was to defame plaintiff--but relayed them to a colleague who was in a
position to investigate. The conversation was within the common interest of
defendant and his colleague on the governing board, and there is nothing in the
record from which a reasonable jury could find that defendant was not seeking
to advance that common interest.
COUNSEL: Dechert
Gordon & Silber, P. C.,
JUDGES: Acting Chief Judge Simons and Judges Titone, Hancock, Jr., and
Bellacosa concur with Judge Kaye; Judge Smith dissents in part and votes to
modify in a separate opinion.
Order affirmed, with costs.
OPINIONBY: Kaye, J.
OPINION: [*432] [**346]
[***859] In this action for slander, we consider
whether the plaintiff has stated a viable claim without any showing of special
damages, whether the alleged slander is protected by qualified privilege, and
whether there is a triable issue of fact as to malice. We conclude that
plaintiff's claims were correctly dismissed on summary judgment.
I.
Before us is one of eight actions, consolidated for disposition by the
motion court, centering on a luxury apartment building in
This defamation action against Gelstein is one of three suits brought
by Liberman against individual members of the tenant association's board of
governors. Gelstein has countersued Liberman and his wife for misconduct
arising from a criminal [*433] complaint filed by Mrs. Liberman, which
apparently resulted in Gelstein's overnight incarceration.
The present complaint alleged five causes of action sounding in
slander. Only two--the second and fifth--are pressed by plaintiff on this
appeal. The other causes of action involving, for example, accusations by
Gelstein that Liberman charged an illegal $ 10 monthly dog rent and stole
electricity from the building, have over the years been dropped.
In his second cause of action, plaintiff alleged that in July 1986, the
following conversation took place between defendant and another tenant of the
building, Robert Kohler.
"Gelstein: Can you find out from your friend at the precinct which
cop is on the take from Liberman?
"Kohler: What are you talking about?
"Gelstein: There is a cop on the take from Liberman. That's why
none of the building's cars ever get tickets--they can park anywhere because
Liberman's paid them off. He gives them a hundred or two hundred a week."
The fifth cause of action alleged that in May 1986 defendant made the
following statement in the presence of employees of the building:
"Liberman threw a punch at me. He screamed at my wife and
daughter. He called my daughter a slut and threatened to kill me and my
family."
Plaintiff claimed $ 5 million damages on each cause of action for
injury to his reputation and emotional distress. After discovery, defendant
sought summary judgment dismissing the complaint. On the second cause of
action, defendant invoked the "common interest" qualified privilege,
characterizing his conversation with Kohler,
[***860] a colleague on the board
of governors, as an inquiry designed to uncover wrongdoing by the landlord
affecting tenants. At his deposition, defendant testified that several vehicles
operated by the building's management regularly parked in front of the building
beyond the legal limit but never received parking summonses. He further
testified that he was told by two building employees, whom he identified, that
Liberman was bribing the police to avoid parking tickets. Defendant admitted
that he did not know whether the allegations were true, but testified that
they [*434] "sounded truthful" to him.
Accordingly, defendant testified that he approached Kohler--whose friend was
captain of the local police precinct--in an effort to discover whether the
allegations were true.
Plaintiff responded that there was an issue of fact on malice, which if
proved at trial, would defeat the qualified privilege. Plaintiff argued that
malice of the common-law variety (spite or ill will) could be inferred from
defendant's over-all conduct toward plaintiff, including one occasion in July
1987 when defendant threw a lit firecracker into his car and another in May
1986 when he pounded on the car's windows and attempted to rip out the
windshield wiper. Moreover, plaintiff argued, malice of the constitutional
variety (knowledge of falsity or reckless disregard for truth or falsity) could
be found in defendant's concession that he had no actual knowledge of bribery
and the lack of trustworthiness of his sources, "disgruntled"
building employees.
On the fifth cause of action, defendant argued that the statements were
either true, not defamatory or never made.
In dismissing the second cause of action, Supreme Court agreed with
defendant that the statements were qualifiedly privileged and plaintiff failed
to sustain his burden of raising a triable issue on malice. The court also held
that the statements comprising the fifth cause of action could only have been
understood by the recipients, who were familiar with the parties' history of
disagreements, as rhetorical hyperbole.
The Appellate Division affirmed, agreeing with Supreme Court's
reasoning. One Justice, who would have reinstated the second cause of action,
dissented in part. He was not "entirely persuaded" that the
statements were qualifiedly privileged, and thought that in any event
defendant's deposition testimony that he did not know whether the bribery
charge was true was itself sufficient to raise a triable issue whether the
statements were made with reckless disregard as to their truth or falsity.
The Appellate Division granted leave, and we affirm.
II.
HN1Slander as a rule is not actionable unless the plaintiff suffers
special damage (see, Aronson v Wiersma, 65 NY2d 592, 594; Matherson v
Marchello, 100 AD2d 233, 236 [Titone, J. P.]; Restatement [Second] of Torts
[Restatement] § 575). Special damages contemplate "the loss of something
having economic [*435] or pecuniary value" (Restatement § 575,
comment b; see, Prosser and Keeton, Torts [Prosser] § 112, at 794 [5th ed]).
Plaintiff has not alleged special damages, and thus his slander claims are not
sustainable unless they fall within one of the exceptions to the rule.
HN2The four established exceptions (collectively "slander per
se") consist of statements (i) charging plaintiff with a serious crime;
(ii) that tend to injure another in his or her trade, business or profession;
(iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a
woman (see, Moore v Francis, 121 NY 199, 203; Privitera v Town of Phelps, 79
AD2d 1, 3 [Simons, J.]; Civil Rights Law § 77; 2 Seelman, Libel and Slander in
the State of New York, at 869-907 [1964]; Restatement § 570-573; Smolla,
Defamation § 7.05). HN3When statements fall within one of these
categories, [**348] [***861]
the law presumes that damages will result, and they need not be alleged
or proven. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The presumed-damages rule has been found unconstitutional in certain
First Amendment cases ( Gertz v Robert Welch, Inc., 418 US 323, 349) and
criticized for use in defamation cases generally (see, e.g., Anderson,
Reputation, Compensation, and Proof, 25 Wm & Mary L Rev 747 [1984]; Uniform
Defamation Act [Feb. 6, 1992 draft] § 9, and comment thereto). Our disposition
makes it unnecessary to consider the issue here.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Plaintiff claims that both sets of statements were slanderous per se
inasmuch as they charged him with criminal conduct. Not every imputation of
unlawful behavior, however, is slanderous per se. "With the extension of
criminal punishment to many minor offenses, it was obviously necessary to make
some distinction as to the character of the crime, since a charge of a traffic
violation, for example, would not exclude a person from society, and today
would do little, if any, harm to his [or her] reputation at all" (Prosser
§ 112, at 789). Thus, the law distinguishes between serious and relatively
minor offenses, and only statements regarding the former are actionable without
proof of damage (see, Restatement § 571, comment g [list of crimes actionable
as per se slander includes murder, burglary, larceny, arson, rape,
kidnapping]).
We agree with plaintiff that defendant's alleged statement that
"[t]here is a cop on the take from Liberman" charges a serious
crime--bribery (see, Penal Law § 200.00; People v Tran, 80 NY2d 170).
Accordingly, the statements constituting the second cause of action are
actionable without the need to establish special harm, and absent any privilege
would be sufficient to go to a jury.
[*436]
We disagree, however, with plaintiff's contention that the statement
"Liberman ... threatened to kill me and my family" was slanderous per
se. n2 Plaintiff claims these words falsely attributed to him the commission of
the crime of harassment (see, Penal Law § 240.25; People v Dorns, 88 Misc 2d
1064 [threats to kill]). Harassment is a relatively minor offense in the New
York Penal Law--not even a misdemeanor--and thus the harm to the reputation of
a person falsely accused of committing harassment would be correspondingly
insubstantial. Hence, even if we agreed with plaintiff that the statement would
not have been construed by the listeners as rhetorical hyperbole, the cause of
action must nevertheless be dismissed because it is not slanderous per se to
claim that someone committed harassment.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 On this appeal, this is the only portion of the fifth cause of
action raised by plaintiff.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Plaintiff alternatively argues that the statements in the fifth cause
of action tended to harm him in his business as a property owner, and thus are
actionable under the "trade, business or profession" exception. That
exception, however, is "limited to defamation of a kind incompatible with
the proper conduct of the business, trade, profession or office itself. The
statement must be made with reference to a matter of significance and
importance for that purpose, rather than a more general reflection upon the
plaintiff's character or qualities" (Prosser § 112, at 791). Thus,
"charges against a clergyman of drunkenness and other moral misconduct
affect his fitness for the performance of the duties of his profession,
although the same charges against a business man or tradesman do not so affect
him" (Restatement § 573, comment c). The statements at issue are unrelated
to plaintiff's status as a landlord, and therefore do not fall into the
"trade, business or profession" exception (see, Aronson v Wiersma, 65
NY2d, at 594, supra).
In sum, the second cause of action is on its face sustainable without
special damages because it involves charges of serious crime, and the fifth
cause of action was correctly dismissed.
III.
We next consider whether the courts below properly concluded that
defendant's conversation with Kohler was conditionally [**349]
[***862] privileged and that
plaintiff failed to raise an issue of fact on malice. [*437]
Courts have long recognized that the public interest is served by
shielding certain communications, though possibly defamatory, from litigation,
rather than risk stifling them altogether (see, Bingham v Gaynor, 203 NY 27,
31). HN4When compelling public policy requires that the speaker be immune from
suit, the law affords an absolute privilege, while statements fostering a
lesser public interest are only conditionally privileged (see, 600 W. 115th St.
Corp. v Von Gutfeld, 80 NY2d 130, 135-136; Park Knoll Assocs. v Schmidt, 59
NY2d 205, 208-209; Toker v Pollak, 44 NY2d 211, 218-220).
One such conditional, or qualified, privilege extends to a
"communication made by one person to another upon a subject in which both
have an interest" ( Stillman v Ford, 22 NY2d 48, 53). This "common
interest" privilege (see, Restatement § 596) has been applied, for
example, to employees of an organization (see, Loughry v Lincoln First Bank, 67
NY2d 369, 376), members of a faculty tenure committee ( Stukuls v State of
We thus agree with the motion court and Appellate Division that
defendant's conversation with Kohler was conditionally privileged (see,
Restatement § 596, comment d ["Tenants in common ... are included within
the rule stated in this Section as being conditionally privileged to
communicate among themselves matter defamatory of others which concerns their
common interests"]). Gelstein and Kohler were members of the governing
body of an association formed to protect the tenants' interests. If Liberman
was in fact bribing the police so that his cars could occupy spaces in front of
the building, that would be inimical to those interests. Thus, Gelstein had a
qualified right to communicate his suspicions--though defamatory of
Liberman--to Kohler.
HN5The shield provided by a qualified privilege may be dissolved if
plaintiff can demonstrate that defendant spoke with "malice" (see,
Park Knoll Assocs. v Schmidt, 59 NY2d, at 211, supra). Under common law, malice
meant spite or ill will (see, Stillman v Ford, 22 NY2d, at 53, supra; Shapiro v
Health Ins. Plan, 7 NY2d, at 61, supra). In New York Times Co. v Sullivan (376
"Actual malice under the New York Times standard should not be
confused with the concept of malice as an evil intent or a motive arising from
spite or ill will ... We have used the term actual malice as a shorthand to
describe the First Amendment protections for speech injurious to reputation and
we continue to do so here. But the term can confuse as well as enlighten. In this
respect, the phrase may be an unfortunate one."
[**350] [***863]
Nevertheless, malice has now assumed a dual meaning, and we have
recognized that the constitutional as well as the common-law standard will
suffice to defeat a conditional privilege (see, Loughry v Lincoln First Bank,
67 NY2d, at 376, supra; O'Rorke v Carpenter, 55 NY2d 798, 799; Stillman v Ford,
22 NY2d, at 53, supra; see also, Restatement § 600, 603, comment a).
Under the Times malice standard, the plaintiff must demonstrate that
the "statements [were] made with [a] high degree of awareness of their
probable falsity" ( Garrison v
Applying these principles, we conclude that there is no triable malice
issue under the Times standard. Although the dissenter below suggested that
Gelstein's admission that he did not know whether the bribery charge was true
raised a triable issue on malice, there is a critical difference between not
knowing whether something is true and being highly aware that it is probably
false. Only the latter establishes reckless disregard in a defamation action.
Moreover, as the motion court correctly observed, plaintiff's mere
characterization [*439] of Gelstein's informants as
"disgruntled" is insufficient to raise a triable issue. Although
plaintiff criticizes defendant for not producing affidavits from the
informants--arguing that "it has never been factually established that
Gelstein had any source"--it was plaintiff's burden to raise a factual
issue on malice, and he did not seek to depose the employees either. n3 In sum,
this record is insufficient to raise a triable issue of fact under the Times
standard of malice.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Plaintiff's appellate argument that he needs further discovery (see,
dissenting opn, at 442) is unavailing. Almost three years elapsed between
defendant's assertion of the common-interest privilege in his verified answer
and the motion for summary judgment. Indeed, plaintiff never claimed a need for
discovery in opposition to the motion (see, CPLR 3212 [f]).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Similarly, there is insufficient evidence of malice under the
common-law definition. A jury could undoubtedly find that, at the time Gelstein
discussed his bribery suspicions with Kohler, Gelstein harbored ill will toward
Liberman. In this context, however, spite or ill will refers not to defendant's
general feelings about plaintiff, but to the speaker's motivation for making
the defamatory statements (see, Restatement § 603, and comment a; Stukuls v
State of New York, 42 NY2d, at 281-282, supra; Stillman v Ford, 22 NY2d, at 53,
supra). If the defendant's statements were made to further the interest
protected by the privilege, it matters not that defendant also despised
plaintiff. Thus, a triable issue is raised only if a jury could reasonably
conclude that "malice was the one and only cause for the publication"
( Stukuls v State of
Plaintiff has not sustained that burden. Significantly, Gelstein did not
make a public announcement of his suspicions--from which an inference could be
drawn that his motive was to defame Liberman--but relayed them to a colleague
who was in a position to investigate. As noted, the conversation was within the
common interest of Gelstein and Kohler, and there is nothing in this record
from which a reasonable jury could find that Gelstein was not seeking to
advance that common interest.
Thus, the courts below properly concluded that defendant's conversation
with Kohler was qualifiedly privileged, and plaintiff failed to raise a fact
issue on malice. n4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 The dissent's contrary conclusion is puzzling in light of its
acknowledgment that the "record is presently lacking any evidence to
support the conclusion that defendant knew that the [bribery] accusation was
false, that there was a high degree of probable falsity, or that he entertained
serious doubts as to its truthfulness." (Dissenting opn, at 442.) Moreover,
the purported factual issue whether the bribery "accusation was stated as
a matter of fact or as part of an inquiry" (dissenting opn, at 442) goes
not to malice, but to whether there is an actionable statement in the first
instance. Insofar as the dissent concludes that the parties' "acrimonious
relationship" is sufficient to raise a triable issue under the common-law
standard (dissenting opn, at 442), we have observed that the "existence of
earlier disputes between the parties is not evidence of malice" ( Shapiro
v Health Ins. Plan, 7 NY2d, at 64, supra).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*440]
[**351] [***864]
Accordingly, the order of the Appellate Division should be affirmed,
with costs.
DISSENTBY: Smith, J.
DISSENT: (Dissenting in part). Because there is an issue of fact as to
whether defendant's statements accusing the plaintiff of bribery either
resulted from a reckless disregard for the truth or falsity of the statements
or were motivated solely by malice, the order of the Appellate Division should
be modified by denying so much of defendant's motion for summary judgment as
sought to dismiss the second cause of action and reinstating that cause of
action. Therefore, I dissent with respect to the second cause of action.
In this defamation action, the plaintiff landlord and defendant tenant,
a board member of the tenants' association, have been involved in continuous
disputes over the last 10 years concerning rent increases and the conversion of
the property to cooperative ownership. Numerous civil and criminal actions
involving these parties and/or others have resulted therefrom.
The second cause of action is based upon the following conversation
between the defendant and a fellow board member:
"Gelstein: Can you find out from your friend at the precinct which
cop is on the take from Liberman?
"Kohler: What are you talking about?
"Gelstein: There is a cop on the take from Liberman. That's why
none of the building's cars ever get tickets--they can park anywhere because
Liberman's paid them off. He gives them a hundred or two hundred a week."
There is no dispute that these statements were made. However, defendant
contends that these were not statements, but rather his effort on behalf of the
tenants' association to investigate what he had supposedly learned from named
plaintiff's employees. He had no knowledge of the truth or falsity of this
bribery accusation. Accordingly, defendant asserted [*441]
that, if defamatory, the statements were within the ambit of the common
interest qualified privilege and that he had acted "without malice or
negligence."
Two issues are raised here concerning the second cause of action. The
first is whether or not there was a qualified privilege to make the statement.
The second is, assuming there was a qualified privilege, whether there has been
raised a sufficient factual showing of malice, knowledge of the falsity of the
statement, or reckless disregard of its truth or falsity to defeat the motion
for summary judgment ( Loughry v Lincoln First Bank, 67 NY2d 369, 376).
The majority has properly concluded that there is a qualified privilege
here. Moreover, the plaintiff does not challenge the assertion that the
statement was qualifiedly privileged.
Given this qualified privilege, the burden shifts to the plaintiff to
show that the statement is nevertheless actionable because it is false and
motivated by malice ( Toker v Pollak, 44 NY2d 211, 219; Park Knoll Assocs. v
Schmidt, 59 NY2d 205, 209; Restatement [Second] of Torts § 613). As the law has
developed in this area, "malice" has been assigned different meanings
based upon the context. n1 At common law, malice has been based upon a
determination that the statement is false, that the defendant knew [**352]
[***865] it to be false when
published and, therefore, the defendant acted in bad faith ( Lovell Co. v
Houghton, 116 NY 520). In other words, actual malice at common law meant "
'personal spite or ill will, or culpable recklessness or negligence' " ( Hoeppner
v Dunkirk Print.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 In response to the divergent meanings attributed to the term
"malice" in the defamation area, the Restatement (Second) of Torts
has abandoned its use for the more comprehensive "abuse of privilege"
terminology.
n2 It should be noted that in Loughry the jury found, inter alia, that
the defendants acted "solely from malice intend[ed] to injure
plaintiff" (supra, at 376).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In light of the foregoing, the issue of malice in the case at bar
should be reviewed under both standards. Under the constitutional standard,
there is an issue of fact as to whether there was a reckless disregard for the
truth or falsity of the bribery accusation or whether defendant, in good faith,
was attempting to ascertain the truth or falsity of the accusation. The record
is presently lacking any evidence to support the conclusion that defendant knew
that the accusation was false, that there was a high degree of awareness of
probable falsity, or that he entertained serious doubts as to its truthfulness.
Defendant denies any knowledge as to its truth or falsity but maintains that he
believed the accusation to be true because the source was two of plaintiff's
employees, whom he identified. (These persons have not yet been deposed.)
However, as to whether the defendant may have shown a reckless disregard for
the truth, it is significant that the defendant and Kohler, the person to whom
the statement was first made, dispute whether the accusation was stated as a
matter of fact or as part of an inquiry. In Kohler's version of the
conversation, the inquiry contained therein pertained to the identification of
the bribed police officer, not the truth of the accusation. Clearly, there is
an issue of fact here that may be resolved by further discovery or that may
require determination by a trier of fact.
Turning to a common-law analysis, there is sufficient evidence in this
record to create an issue of fact as to whether defendant's statements were
motivated solely by spite or ill will. The parties' acrimonious relationship is
accentuated by, [*443] inter alia, lawsuits, defendant tossing a
possibly lit firecracker into plaintiff's vehicle, and an incident where
defendant pounded on plaintiff's vehicle while occupied by plaintiff, his wife,
and their children. And, as discussed above, if it is found that defendant
stated the accusation as fact, spite or ill will may have been the sole
motivation.
[**353] [***866]
Therefore, if plaintiff proves that the accusation is false, the
foregoing considerations suffice to create issues of fact as to malice under
both standards.
The conclusion that there is no triable issue of fact here because a
jury could not reasonably conclude that malice alone was the motivation for the
statement is not supported by the record. Plaintiff indeed has the burden of
proving that malice alone was the cause for the publication ( Stukuls v State
of