Opinion
June 16, 2000.
Appeal from Order of Supreme Court, Monroe County, Affronti, J. — Summary Judgment.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES AND HURLBUTT, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this defamation action, plaintiff appeals from an order that granted in part defendants' motion for summary judgment by dismissing the first and third through ninth and 11th causes of action. We agree with plaintiff that Supreme Court erred in dismissing the first and sixth through ninth causes of action on the ground of qualified privilege, and thus we modify the order accordingly. By failing to submit any proof in admissible form with respect to those causes of action, defendants did not meet their initial burden of proving qualified privilege with respect to the statements alleged therein, and the burden therefore never shifted to plaintiff to prove that defendants made the statements with malice ( cf., Teixeira v. Korth, 267 A.D.2d 958).
Contrary to plaintiff's contention, the court properly granted that part of defendants' motion seeking summary judgment dismissing the third and fifth causes of action based on plaintiff's failure to state a cause of action ( see, CPLR 3211 [a] [7]; see generally, American Food Vending Corp. v. International Bus. Machs. Corp., 245 A.D.2d 1089, 1090, lv dismissed 91 N.Y.2d 956). The court properly determined that the statements forming the bases for those causes of action constitute nonactionable statements of opinion rather than statements of fact ( see, Gross v. New York Times Co., 82 N.Y.2d 146, 152-153; 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, rearg denied 81 N.Y.2d 759, cert denied 508 U.S. 910).
We have considered plaintiff's remaining contentions and conclude that they are without merit.