113 A.D.2d 172 | N.Y. App. Div. | 1985
OPINION OF THE COURT
This defamation action emanates from a statement made during the course of an informal administrative meeting. Plaintiffs are the owners of the Dry Harbor Nursing Home (Dry Harbor), a 360-bed residential health care facility located in Queens County. In December 1980, plaintiffs contracted to sell Dry Harbor to Robert Friedman and Jonathan Strasser, who, in turn, filed an application with the Public Health Council seeking approval of the transfer (see, Public Health Law § 2801-a). In November 1981, the Bureau of Financial Analysis
In their second affirmative defense, defendants alleged that the statement was true and spoken without malice. It is axiomatic that truth is an absolute, unqualified defense to a civil defamation action (see, e.g., Commonwealth Motor Parts v Bank of Nova Scotia, 44 AD2d 375, 378, affd 37 NY2d 824; Dolcin Corp. v Reader’s Digest Assn., 7 AD2d 449, 454; 1 Seelman, Libel and Slander in New York |f 170, at 210 [1964]), and that substantial truth is all that is required (Klein v Prial, 32 AD2d 925, 926, affd 28 NY2d 506; O’Connor v Field, 266 App Div 121; Grab v Poughkeepsie Newspapers, 91 Misc 2d 1003, 1004). Plaintiffs maintain that since the OSP report was not finalized pursuant to departmental guidelines (10 NYCRR 86-2.7; see also, 18 NYCRR 518.1; cf. Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169,178-179), defendants may not rely on the report as conclusive evidence of the truth of its content. We agree. Since the report was subject to further audit, it cannot serve as proof of its own content. Inasmuch as no other evidence as to truth was offered, defendants failed to establish the affirmative defense of truth.
We find, however, that the third affirmative defense of privilege is more convincing and that Special Term correctly granted defendants summary judgment on this basis. Al
In our view, defendants are protected by a qualified privilege.
Nor can we accept plaintiffs’ contention that since the OSP report included information from a Grand Jury investigation of Di-Com Corporation, defendants acted in excess of their authority in relaying this information to the applicants and thus were not entitled to assert a qualified privilege. This argument stems from a previous decision involving plaintiffs, Matter of Schwartzberg v Axelrod (Sup Ct, Albany County,
This conclusion is further buttressed by the fact that defendants’ disclosure of the information contained in the OSP report was made in performance of their statutory duties of determining whether the proposed sale should be approved (Public Health Law § 2801-a [4]) and, as such, may be deemed excluded from the prohibition of Penal Law § 215.70. Nor does it appear that principles of collateral estoppel may be employed against defendants since the issue of the disclosure of information concerning Dry Harbor was not fully litigated in Schwartzberg (supra), which involved the Kings Harbor facilities (see, e.g., Kaufman v Lilly & Co., 65 NY2d 449, 455).
Finally, we hold that plaintiffs have failed to demonstrate the existence of a triable issue of fact by proffering evidentiary proof that defendants were motivated by actual malice, ill will, personal spite, culpable recklessness or negligence (Kasachkoff v City of New York, 107 AD2d 130, 135, supra). Plaintiffs’ sole affidavit in opposition to the motion was by their attorney and thus lacks probative value on the issue of malice (see, Hollander v Long Is. Plastic Surgical Group, 104 AD2d 357, 358). Since the record substantiates that defendants’ statements were made in the performance of their job duties and in good-faith reliance upon the OSP report, plaintiffs have failed to demonstrate facts sufficient to infer malice. Summary judgment was therefore properly granted (see, Buckley v Litman, 57 NY2d 516, 521).
Judgment affirmed, with costs.
. The Bureau of Financial Analysis is part of the Division of Health Care Planning and Resource Management, which is charged with reviewing establishment/transfer applications and making recommendations to the Public Health Council.
. Now known as the Deputy Attorney-General for Medicaid Fraud Control.
. This report was partly based on material disclosed to a Grand Jury by Di-Com Corporation, the general contractor responsible for building Dry Harbor and other facilities owned by plaintiifs called Kings Harbor Care Center and Kings Harbor Manor Facility. We note that plaintiff Albert Schwartzberg was a shareholder in Di-Com Corporation.
. The first two causes of action were dismissed as time barred by order entered July 8, 1983. Said order also dropped defendant John Saupp as a party and severed the third cause of action.
. Plaintiffs also appealed from the denial of their motion to disqualify the Attorney-General from representing defendants due to a purported conflict of interest. They have not pursued that issue on this appeal.
. Since defendants did not allege that they were protected by an absolute privilege, the merits of such an allegation are not addressed.