Common interest privilege

Scott v Thayer, 2018 NY Slip Op 02524 [3d Dept. 2018]

Although plaintiff alleged that Thayer made numerous defamatory statements, the only one relevant to this appeal is a statement that Thayer purportedly made to Anthony Posca — a doctor who treated decedent at Albany Memorial Hospital — that "[plaintiff] . . . was very abusive to [decedent], would not take [her] anywhere for checkups, would not let Adult Protective Services or other aides into the house, . . . and that [plaintiff] would not allow [decedent] to be place[d] anywhere." Supreme Court granted Thayer's motion pursuant to CPLR 3211 (c) and dismissed the amended complaint against her finding, in relevant part, that the statement that she allegedly made to Posca was protected by the qualified common interest privilege and that plaintiff had not tendered evidence of malice sufficient to defeat the privilege. Thereafter, Supreme Court denied plaintiff's subsequent motion for leave to renew his opposition to Thayer's motion to provide evidence of malice. Plaintiff now appeals from the order granting defendant's motion for summary judgment and from the order denying his motion to renew.

Supreme Court properly determined that the statement that Thayer allegedly made to Posca is protected by the qualified privilege. "A qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest" (Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1150 [2012] [internal quotation marks and citations omitted], lv denied 19 NY3d 801 [2012]). To invoke the qualified privilege, "[t]he parties need only have such a relation to each other as would support a reasonable ground for supposing an innocent motive for imparting the information" (Anas v Brown, 269 AD2d 761, 762 [2000]).