Opinion
1288 CA 17–00721
02-09-2018
Sadashiv S. SHENOY, M.D., Plaintiff–Respondent, v. Kaleida HEALTH, et al., Defendants, and Ralph Benedict, M.D., Defendant–Appellant.
GIBSON, McASKILL & CROSBY, LLP, BUFFALO (JOSEPH W. DUNBAR OF COUNSEL), FOR DEFENDANT–APPELLANT. GARVEY & GARVEY, BUFFALO (MATTHEW J. GARVEY OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
GIBSON, McASKILL & CROSBY, LLP, BUFFALO (JOSEPH W. DUNBAR OF COUNSEL), FOR DEFENDANT–APPELLANT.
GARVEY & GARVEY, BUFFALO (MATTHEW J. GARVEY OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Plaintiff, a doctor employed by defendant Kaleida Health (Kaleida), performed a surgery in which the patient died. As a result of this incident, and pursuant to Kaleida policy, plaintiff underwent a neuropsychological competence assessment by Ralph Benedict, M.D. (defendant). Defendant thereafter submitted a written report detailing his findings and opinions to both Kaleida's internal review body and plaintiff's personal physician. Plaintiff then commenced the instant action and asserted, inter alia, causes of action for defamation and, in effect, tortious interference with economic relations against defendant based on allegations that defendant's written report and associated oral comments damaged plaintiff's reputation and professional and business relationship with Kaleida. Supreme Court denied defendant's motion for summary judgment dismissing the complaint against him. Defendant appeals, and we now reverse.
We agree with defendant that the court erred in denying that part of his motion with respect to the causes of action for defamation against him. "It is well settled that summary judgment is properly granted [dismissing a defamation cause of action] where a qualified privilege obtains and the plaintiff[ ] offer[s] an insufficient showing of actual malice" ( Trails W. v. Wolff, 32 N.Y.2d 207, 221, 344 N.Y.S.2d 863, 298 N.E.2d 52 [1973] ). Here, defendant established as a matter of law that his written report and associated oral commentary were protected both by the " ‘common interest’ " qualified privilege ( Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] ; see Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 60–61, 194 N.Y.S.2d 509, 163 N.E.2d 333 [1959] ), and by the statutory qualified privilege of Education Law § 6527(5) (see Colantonio v. Mercy Med. Ctr., 135 A.D.3d 686, 691, 24 N.Y.S.3d 653 [2d Dept. 2016], lv denied 28 N.Y.3d 903, 2016 WL 4999585 [2016] ; Cooper v. Hodge, 28 A.D.3d 1149, 1150, 814 N.Y.S.2d 447 [4th Dept. 2006] ). In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual malice (see Farooq v. Coffey, 206 A.D.2d 879, 880, 616 N.Y.S.2d 112 [4th Dept. 1994] ).
We further agree with defendant that the court erred in denying that part of his motion with respect to the defamation causes of action on the alternative ground that the allegedly defamatory statements are expressions of pure opinion (see Balderman v. American Broadcasting Cos., 292 A.D.2d 67, 72–73, 738 N.Y.S.2d 462 [4th Dept. 2002], lv denied 98 N.Y.2d 613, 751 N.Y.S.2d 168, 780 N.E.2d 979 [2002] ; Roth v. Tuckman, 162 A.D.2d 941, 942, 558 N.Y.S.2d 264 [3rd Dept. 1990], lv denied 76 N.Y.2d 712, 563 N.Y.S.2d 768, 565 N.E.2d 517 [1990] ). "Expressions of opinion ... are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" ( Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 [2008], cert denied 555 U.S. 1170, 129 S.Ct. 1315, 173 L.Ed.2d 584 [2009] ).
Contrary to plaintiff's contention, that part of the motion seeking summary judgment dismissing the defamation causes of action is not premature merely because defendant has not been deposed (see Colantonio, 135 A.D.3d at 693, 24 N.Y.S.3d 653 ). " ‘A mere chance that somehow, somewhere, on cross examination or otherwise plaintiff[ ] will uncover something which might add to [his] case but obviously of which now [he has] no knowledge, is mere speculation and conjecture and is not sufficient’ " to establish that a summary judgment motion is premature ( Trails W., 32 N.Y.2d at 221, 344 N.Y.S.2d 863, 298 N.E.2d 52 ).
Finally, we agree with defendant that his motion also should have been granted with respect to the causes of action for, in effect, tortious interference with economic relations because defendant established as a matter of law that his conduct was "insufficiently ‘culpable’ to create liability for [tortious] interference with ... economic relations" ( Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint against defendant Ralph Benedict, M.D. is dismissed.