| Phelan v Huntington Tri-Vil. Little League, Inc. |
| 2008 NY Slip Op 09576 [57 AD3d 503] |
| December 2, 2008 |
| Appellate Division, Second Department |
| John Phelan, Appellant, v Huntington Tri-Village Little League,Inc., et al., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (James O'Brien andRichard E. Lerner of counsel), for respondents.
In an action to recover damages for defamation, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Baisley, J.), dated August 22, 2007, which granted the defendants' motion forsummary judgment dismissing the complaint and denied his cross motion to compel discovery.
Ordered that the order is affirmed, with costs.
The plaintiff, a little league baseball coach, alleges that he was defamed by the defendants when thedefendant John Zammillo, the umpire in chief of the defendant Huntington Tri-Village Little League, Inc.(hereinafter HTV), wrote a letter to the Director of the Huntington Department of Parks and Recreation(hereinafter the Director) complaining of, among other things, the plaintiff's "unacceptable anddespicable language and behavior" at a little league baseball game while the plaintiff was attempting toeject two HTV affiliated teams from the field so that his non-HTV affiliated team could begin its gameat the scheduled time. The plaintiff alleges that the letter constituted libel and/or libel per se because inaddition to being a little league baseball coach, he is employed by the Town of Huntington, and theallegedly defamatory letter injured the plaintiff in his trade, business, and/or profession as it was sent toone of his supervisors, i.e., the Director. The plaintiff alleges that the defendants sent the letter inretaliation for his services to a more successful non-HTV affiliated little league team which was causinga diminution in HTV membership and revenue.[*2]
The defendants moved for summary judgment dismissing thecomplaint on the ground, inter alia, that the statements were privileged and not damaging to theplaintiff's integrity or reputation in his occupation. The plaintiff opposed the motion and cross-moved tocompel discovery, arguing that he made sufficient allegations of malice to warrant further discovery onthe issue and to thus preclude the granting of summary judgment.
The Supreme Court granted the defendants' motion for summary judgment and denied the plaintiff'smotion to compel discovery, finding, inter alia, that the defendants were entitled to a qualified privilegebecause Zammillo's statements were made to a group with whom he had a corresponding interest, andfurther that the plaintiff failed to raise a triable issue of fact with respect to the issue of malice on the partof the defendants. We affirm.
A qualified privilege extends to a " 'communication made by one person to another upon a subjectin which both have an interest' " (Liberman v Gelstein, 80 NY2d 429, 437 [1992], quotingStillman v Ford, 22 NY2d 48, 53 [1968]). However, where the plaintiff can demonstrate thatthe communication made by the defendant was not made in good faith but was motivated solely bymalice, the protection provided by the qualified privilege will be inapplicable (see Liberman vGelstein, 80 NY2d at 437-439). " 'Mere conclusory allegations, or charges based upon surmise,conjecture, and suspicion are insufficient to defeat the claim of qualified privilege' " (Golden vStiso, 279 AD2d 607, 608 [2001], quoting Kamerman v Kolt, 210 AD2d 454, 455[1994]). The communications at issue were entitled to a qualified privilege, and the plaintiff failed toraise a triable issue of fact with respect to whether the communications were motivated solely bymalice. Additionally, the plaintiff "has not demonstrated how further discovery might reveal the existenceof material facts, currently within the exclusive knowledge and control of the defendants, which wouldwarrant the denial of their motions for summary judgment" (Shover v Instant Whip Processors,240 AD2d 560, 560-561 [1997]; see La Scala v D'Angelo, 104 AD2d 930, 931 [1984]).Accordingly, the Supreme Court properly awarded summary judgment in favor of the defendants anddenied the plaintiff's motion to compel discovery.
The plaintiff's remaining contentions either are without merit or have been rendered academic.Skelos, J.P., Fisher, Santucci and Carni, JJ., concur. [See 16 Misc 3d 1138(A), 2007 NYSlip Op 51729(U).]