Opinion
April 21, 1994
Appeal from the Supreme Court, New York County (William J. Davis, J.).
The plaintiff, a former medical resident, instituted this action alleging that the defendants made certain libelous and slanderous remarks concerning his professional qualifications to the American Board of Internal Medicine and to the Long Island Jewish Medical Center where he had been conditionally accepted for a fellowship following his residency at Harlem Hospital. The jury found in his favor and awarded compensatory damages for past and future loss of income. Punitive damages were also assessed against the defendant Dobkin, the director of the residency program.
While we agree with the plaintiff that the allegations in the complaint were set forth with sufficient particularity (see, CPLR 3016 [a]; Rossignol v Silvernail, 185 A.D.2d 497, lv denied 80 N.Y.2d 760), the Supreme Court abused its discretion in denying the defendants' motion to amend their answer to assert the affirmative defense of qualified privilege.
While the decision to allow or disallow an amendment to the pleadings is committed to the court's discretion (Murray v City of New York, 43 N.Y.2d 400, 404-405, rearg dismissed 45 N.Y.2d 966), "[p]ermission to amend pleadings should be 'freely given' (CPLR 3025, subd [b])" (Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957, 959).
The fact that the defendants moved to amend their answer just prior to opening statements was no bar to granting leave. A court may grant leave to amend pleadings "at any time" (CPLR 3025 [b]). "'Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side * * *' (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:5 [at 356])" (Edenwald Contr. Co. v City of New York, supra, at 959; Suarez v City of New York, 169 A.D.2d 540; Detrinca v De Fillippo, 165 A.D.2d 505, 508). In determining whether to grant a motion to amend an answer, the court should consider the merit of the proposed defense and whether the plaintiff will be prejudiced by the delay in raising it (Crimmins Contr. Co. v City of New York, 74 N.Y.2d 166, 170; Herrick v Second Cuthouse, 64 N.Y.2d 692; Fahey v County of Ontario, 44 N.Y.2d 934).
It cannot be said that the proposed defense lacked merit. The qualified privilege defense cloaks certain statements, even if defamatory, with a conditional privilege, in order to serve a societal interest in encouraging people who have a legal or moral duty to respond to inquiries to communicate freely (see, Liberman v Gelstein, 80 N.Y.2d 429, 437; Stukuls v State of New York, 42 N.Y.2d 272, 278-279). The privilege attaches when the statement is made between individuals who share a common interest and can be overcome only by a showing of malice on the part of the declarant (Liberman v Gelstein, supra, at 437). The communications at issue were made in the context of graduate medical education and involved complex value judgments most appropriately made by professionals in the field (see, Matter of Patti Ann H. v New York Med. Coll., 58 N.Y.2d 734; see also, Meller v Tancer, 174 A.D.2d 374).
The plaintiff has also failed to establish that he would have been prejudiced by the proposed amendment. The fact that the qualified privilege defense might defeat his cause of action is not the type of prejudice which will bar a motion to amend (see, Ozen v Yilmaz, 181 A.D.2d 666, 667). Instead, he had to demonstrate that he "has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position" (Loomis v Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23). Although the plaintiff will have to establish malice to overcome the defense, he cannot claim surprise since the facts and circumstances with respect to the qualified privilege were fully explored during discovery. He also placed the question of malice in issue by pleading that the statements were made maliciously and by seeking an award of punitive damages (see, Loomis v Civetta Corinno Constr. Corp., supra; Rife v Union Coll., 30 A.D.2d 504). Accordingly, there has been no showing of "operative prejudice" (Murray v City of New York, supra, at 405).
Contrary to the plaintiff's contention, the error in denying the defendants' motion to amend their answer was not harmless despite the jury's award of punitive damages. Whether or not the plaintiff can establish malice to overcome the privilege, upon proper instructions, must await a new trial.
In light of the foregoing, we do not reach the parties' remaining contentions.
Concur — Murphy, P.J., Sullivan, Rosenberger, Ross and Rubin, JJ.