Opinion
February 18, 1971
Appeal from the Monroe Special Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Henry, JJ.
Order unanimously reversed on the law and facts, motion granted and complaint dismissed, all without costs. Memorandum: Defendants appeal from an order denying their motion for summary judgment dismissing plaintiff's complaint. In the school year of 1967-1968, while the parties herein were employees of the Rochester Board of Education, defendants wrote reports to certain administrators in the school system evaluating plaintiff's performance as a guidance counselor, which plaintiff alleges were defamatory. The communications made by defendants with respect to plaintiff were matters in which they had an interest or duty and since they were made to persons with similar interest or duties, defendants are protected by a qualified privilege. In order to render the statements actionable it was incumbent on plaintiff to prove by evidentiary facts that defendants were actuated by express malice or actual ill will. ( Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 60, 63.) Plaintiff in his answering affidavit alleges that the documents contain false, scandalous and defamatory statements but no details as to such statements are given. He makes conclusory allegations that defendants acted with express malicious intent to harm him and to destroy his reputation as a guidance counselor but nowhere in plaintiff's affidavit are there any evidentiary facts (as distinguished from mere conclusory allegations). He also alleges that malicious intent is demonstrated by the language and tone of the communications in stating that he had been far less than helpful in building a stable mental health climate; and that belligerance and hostility is a consistent factor in all his relationships and a harmful and potentially dangerous situation exists at No. 6 School. While a communication may be so extravagant in its denunciations or so vituperative in its character as to justify an inference of malice ( Ashcroft v. Hammond, 197 N.Y. 488, 496) or be couched in such venomous language and so plainly exhibit hatred as to warrant an inference of actual ill will ( Pecue v. Collins, 204 A D 142, 146), there is no language in the documents here complained of which would justify such an inference (cf. Sheridan v. Crisona, 14 N.Y.2d 108; Stillman v. Ford, 22 N.Y.2d 48; Shapiro v. Health Ins. Plan of Greater New York, supra). Plaintiff failed to satisfy his burden of establishing malice by evidentiary facts.