| Mancuso v Allergy Assoc. of Rochester |
| 2010 NY Slip Op 01284 [70 AD3d 1499] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Patricia Mancuso, Appellant, v Allergy Associates of Rochester etal., Respondents. |
—[*1] Nixon Peabody LLP, Rochester (Tracey B. Ehlers of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), enteredOctober 7, 2008 in a defamation action. The order, insofar as appealed from, granted that part ofthe motion of defendants for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages resulting from allegedlydefamatory statements made by defendant Dr. Bruce Corsello, an owner and partner of defendantAllergy Associates of Rochester (Allergy Associates), to plaintiff's coworkers. Defendant Dr.Eric M. Dreyfuss is also an owner and partner of Allergy Associates. Supreme Court properlygranted that part of the motion of defendants for summary judgment dismissing the complaint.With respect to plaintiff's first cause of action, for slander per se, "[a] communication made byone person to another upon a subject in which both have an interest is protected by a qualifiedprivilege" (Stillman v Ford, 22 NY2d 48, 53 [1968]; see Anas v Brown, 269AD2d 761, 762 [2000]). Thus, even assuming, arguendo, that defendant made the statements asalleged in plaintiff's complaint, we conclude that defendants met their initial burden byestablishing that the alleged statements were protected by a qualified privilege. "It is uncontestedhere that the statement[s] at issue [were] communicated to a limited number of people, all ofwhom were . . . employees [of Allergy Associates] who had worked with plaintiffand who had a legitimate interest in knowing that a serious sanction had been imposed for [a]violation" of professional regulations (Bisso v De Freest, 251 AD2d 953, 953 [1998]; see Anderson v Our Lady of Mercy Med.Ctr., 31 AD3d 270 [2006]).
We agree with plaintiff, however, that the court erred in applying a clear and convincingstandard in reviewing whether plaintiff met her burden of overcoming defendants' qualifiedprivilege, [*2]although we ultimately conclude that the courtproperly granted that part of defendants' motion with respect to the first cause of action. Where,as here, a plaintiff is a private individual and the allegedly defamatory statements are not amatter of legitimate public concern, the more stringent First Amendment protections associatedwith public officials or affairs are not implicated (see generally Dun & Bradstreet, Inc. vGreenmoss Builders, Inc., 472 US 749, 761-763 [1985]; New York Times Co. vSullivan, 376 US 254, 279-280 [1964]; Chapadeau v Utica Observer-Dispatch, 38NY2d 196, 199 [1975]). Thus, the clear and convincing standard does not apply herein but,rather, the preponderance of the evidence standard applies, such that a triable issue of fact israised only if, based upon a preponderance of the evidence, a trier of fact "could reasonablyconclude that 'malice was the one and only cause for the publication' " (Liberman vGelstein, 80 NY2d 429, 439 [1992]). To the extent that our decision in Teixeira vKorth (267 AD2d 958, 959 [1999]) holds otherwise, it is no longer to be followed. As noted,we conclude in this case that defendants met their initial burden, and we further conclude thatplaintiff failed to raise a triable issue of fact whether the statements were motivated solely bymalice. Absent such a showing, "it matters not that [Dr. Corsello may have] alsodespised plaintiff" (Liberman, 80 NY2d at 439; see generally Matter of Williams vCounty of Genesee, 306 AD2d 865, 868 [2003]).
We further conclude that the court properly granted that part of defendants' motion withrespect to the remaining cause of action, for prima facie tort. Plaintiff failed to allege specialdamages with the required specificity (see Freihofer v Hearst Corp., 65 NY2d 135,142-143 [1985]; Epifani v Johnson,65 AD3d 224, 233 [2009]). Indeed, the complaint contains only the general statement thatplaintiff was "damaged in the amount of not less than [$1 million]." "[D]amages pleaded in suchround sums, without any attempt at itemization, must be deemed allegations of general damages"(Leather Dev. Corp. v Dun & Bradstreet, 15 AD2d 761 [1962], affd 12 NY2d909 [1963]). Moreover, plaintiff failed to allege that the sole motivation of Dr. Corsello was "'disinterested malevolence,' " which is a required element for plaintiff's recovery in prima facietort (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983]; see Morrison v Woolley, 45 AD3d953, 954 [2007]).
Finally, plaintiff contends that defendants' motion should have been denied insofar as itsought summary judgment dismissing the complaint because "facts essential to justify oppositionmay exist but cannot then be stated" (CPLR 3212 [f]). We reject that contention, based onplaintiff's "failure to demonstrate that the discovery being sought is anything more than a fishingexpedition" (Greenberg v McLaughlin, 242 AD2d 603, 604 [1997]).Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.