Summary
granting motion to dismiss and stating: "The mere conclusory allegations by the plaintiff herein that the statements were maliciously motivated is insufficient to defeat the claim of qualified privilege"
Summary of this case from Forte v. Lutheran Augustana Extended Care REHA.CTROpinion
December 30, 1988
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the judgment is affirmed, with costs.
The plaintiff, a physician and chairman of the department of pediatrics at Brooklyn Hospital — Caldedonian Hospital alleged that the defendant, who was the president of the professional staff of the hospital, had stated that the plaintiff was "immoral", "unethical" and had "mismanaged cases". The defendant allegedly made these remarks while presiding over regularly scheduled meetings of the hospital's professional staff and a meeting of the medical board.
Our review of the record reveals that the statements complained of constituted nonactionable opinion (see, Gertz v Robert Welch, Inc., 418 U.S. 323; Steinhilber v Alphonse, 68 N.Y.2d 283; Rinaldi v Holt, Rinehart Winston, 42 N.Y.2d 369, cert denied 434 U.S. 969). We find that the statements by the defendant were indefinite, ambiguous and incapable of being objectively characterized as true or false. Further, an examination of the full context of the communication as well as the setting in which these remarks were made supports the conclusion that these declarations were accepted by the audience as opinion rather than statements of fact.
Additionally, we note that the statements complained of were subject to a qualified privilege. A communication is qualifiedly privileged when it is fairly made by a person in the discharge of some public or private duty upon any subject matter in which that person has an interest, and where it is made to a person or persons with a corresponding interest or duty (see, Buckley v Litman, 57 N.Y.2d 516; Toker v Pollak, 44 N.Y.2d 211; Shapiro v Health Ins. Plan, 7 N.Y.2d 56; Murphy v Herfort, 140 A.D.2d 415). In the instant case, the comments were made by the president of the medical staff at regularly scheduled meetings to fellow physicians and other members of the professional staff who shared a common interest in the quality of the care rendered by the hospital. To overcome a defense of qualified privilege the plaintiff must make an evidentiary showing that the statements were published with actual malice, which is defined as personal spite, ill will or culpable recklessness or negligence. The mere conclusory allegations by the plaintiff herein that the statements were maliciously motivated is insufficient to defeat the claim of qualified privilege (see, Shapiro v Health Ins. Plan, supra, at 64; Friedman v Ergin, 110 A.D.2d 620). Thompson, J.P., Rubin, Spatt and Balletta, JJ., concur.