Scaccia v. Dolch

Sep 27, 1996
Versions:231 A.D.2d 885
647 N.Y.S.2d 883
1996 N.Y. App. Div. LEXIS 14303

Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted summary judgment dismissing the first and third causes of action. Defendants Rebecca W. Dolch and William D. Highland met their burden of establishing lack of publication by presenting proof in admissible form that the defamatory statements alleged in the first cause of action were not made by them to defendant Marian MacCurdy (see, Barber v Daly, 185 AD2d 567, 569; Memory Gardens v D’Amico, 91 AD2d 1159). The assertion of plaintiff that MacCurdy told him that the alleged statements were made to her by Dolch and Highland "is mere hearsay and insufficient to raise a triable issue of fact” (Barber v Daly, supra, at 570; see, Memory Gardens v D’Amico, supra, at 1160). Dolch and Highland also met their burden of establishing that they are entitled to judgment on the third cause of action because the allegedly defamatory statements are either qualifiedly privileged and made without malice (see, Foster v Churchill, 87 NY2d 744, 751-752; Kantor v Pavelchak, 134 AD2d 352, 353), nonactionable expressions of *886opinion (see, Brian v Richardson, 87 NY2d 46, 51) or true (see, Smith v United Church Ministry, 212 AD2d 1038, 1039, lv denied 85 NY2d 806). Plaintiff failed to submit evidentiaryproof sufficient to raise a question of fact with respect to the third cause of action (see, CPLR 3212 [b]). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Summary Judgment.) Present—Green, J. P., Pine, Fallon, Doerr and Boehm, JJ.