Opinion
2014-04-17
Viviene SMITH, Plaintiff–Appellant, v. MONTEFIORE MEDICAL CENTER, et al., Defendants–Respondents.
Wolf & Wolf, LLP, Bronx (Jason M. Wolf of counsel), for appellant. Hoguet Newman Regal & Kenney, LLP, New York (Richard M. Reice of counsel), for respondents.
Wolf & Wolf, LLP, Bronx (Jason M. Wolf of counsel), for appellant. Hoguet Newman Regal & Kenney, LLP, New York (Richard M. Reice of counsel), for respondents.
RENWICK, J.P., MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 9, 2013, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff's cause of action alleging libel, unanimously affirmed, without costs.
Plaintiff's cause of action for libel arises out of the statements made by defendant Alma Wilson, in a report to her supervisor, wherein Wilson claimed to have witnessed plaintiff verbally and physically abuse an elderly patient. It is undisputed that the statements are protected by a qualified privilege. However, plaintiff may defeat this defense by demonstrating that defendant was motivated by malice ( see Foster v. Churchill, 87 N.Y.2d 744, 751–752, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996];Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] ). While an allegation of falsity is insufficient to create an inference of malice ( see Stukuls v. State of New York, 42 N.Y.2d 272, 279, 397 N.Y.S.2d 740, 366 N.E.2d 829 [1977] ), malice may be inferred “from a statement that is so extravagant in its denunciations or so vituperative in its character as to warrant an inference of malice” ( Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 260, 633 N.Y.S.2d 106 [1st Dept.1995] [internal quotation marks and citation omitted] ).
Here, the nature of the statements, reporting patient mistreatment, is such that, a jury could not “reasonably conclude that ‘malice was the one and only cause for the publication’ ” ( Liberman, 80 N.Y.2d at 439, 590 N.Y.S.2d 857, 605 N.E.2d 344). Indeed, plaintiff herself, when questioned about what motivation she attributed to Wilson's allegedly false report, stated, “I can't figure why she would have done something like that.” Nor does the record contain evidence that the statements were made with knowledge of their probable falsity ( Liberman, 80 N.Y.2d at 438–39, 590 N.Y.S.2d 857, 605 N.E.2d 344). To the contrary, the record contains evidence that after an investigation, which included testimony from a third employee corroborating Wilson's complaint about plaintiff's mistreatment of the patient, defendant Montefiore terminated plaintiff. Plaintiff's union then declined, after an investigation, to pursue arbitration on her behalf. Thus, the motion court properly concluded that, on this record, there was no question of fact to be resolved by a jury as to whether Wilson was motivated by malice.