qualified privilege in New York

2024We also agree with the motion court's determination that the "actual malice" standard should be applied in the evaluation of whether Dinowitz's conduct went beyond that protected by the qualified privilege ( see Liberman v Gelstein , 80 NY2d 429, 437 [1992] ["The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with 'malice'"]).

2024We also agree with the motion court's determination that the "actual malice" standard should be applied in the evaluation of whether Dinowitz's conduct went beyond that protected by the qualified privilege ( see Liberman v Gelstein , 80 NY2d 429, 437 [1992] ["The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with 'malice'"]).

2025A qualified privilege is a defense to slander and shields an otherwise defamatory statement "made to persons who have some common interest in the subject matter." Foster v. Churchill, 87 NY2d 744, 751 ; see Loughry v. Lincoln First Bank, N.A., 67 NY2d 369, 376 (1986); Wilcox v. Newark Val.

2025CCB additionally contends that its board members are protected by the qualified privilege that exists "where the [allegedly defamatory] communication is made to persons who have some common interest in the subject matter" ( Foster v Churchill , 87 NY2d 744, 751 [1996]), but we reject that contention too.

2024"While [the State's] duty is nondelegable, it is measured by the courts with consideration [*11]given to the proper limits on intrusion into the municipality's planning and decision-making functions [and] in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision" ( Friedman v State of New York , 67 NY2d 271 , 283 , see also, Alexander v Eldred , 63 NY2d 460, 465-466 [1984]; Weiss v Fote , 7 NY2d 579, 585-586 [1960]).

2024Applying the doctrine of qualified immunity, the State may be held liable when it is evident that its study of a traffic condition is "plainly inadequate or there is no reasonable basis for its traffic plan" ( Friedman v State of New York , 67 NY2d at 283 ; citing, Alexander v Eldred , 63 NY2d 460, 465-466 [1984]; see also, Weiss v Fote , 7 NY2d 579, 589 [1960]).

2025"In the specific proprietary field of roadway safety, a municipality is afforded 'a qualified immunity from liability arising out of a highway planning decision' " ( id. , quoting Friedman v State of New York , 67 NY2d 271, 283 [1986]).

2024Thus, in the field of traffic design engineering, the [governmental body] is accorded a qualified immunity from liability arising out of a highway planning decision'" ( Tyberg v City of New York , 173 AD3d at 1240, quoting Friedman v State of New York , 67 NY2d 271, 283 ; see Heins v Vanbourgondien , 180 AD3d at 1021 ).

2024The doctrine of qualified immunity shields individuals who act “in the discharge of some public or private duty, legal or moral, or in the conduct of [their] own affairs, in a matter where [their] interest is concerned” (Sagaille v Carrega, 194 AD3d 92 , 95 [1st Dept 2021] lv denied 37 NY3d 909 , quoting Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [2007]).

2021The doctrine of qualified immunity shields individuals who, like defendant, act "in the discharge of some public or private duty, legal or moral, or in the conduct of [her] own affairs, in a matter where h[er] interest is concerned" ( Rosenberg v MetLife, Inc ., 8 NY3d 359, 365 [2007] [internal quotation marks omitted]).

2012Plan of Greater N.Y., 7 NY2d 56, 60 [1959], quoting Bingham v Gaynor, 203 NY 27, 31 [1911] [the qualified privilege “ ‘grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person’ ”]; Silverman v Clark, 35 AD3d 1, 11 [2006]).

2012Plan of Greater N.Y., 7 NY2d 56, 60 [1959], quoting Bingham v Gaynor, 203 NY 27, 31 [1911] [the qualified privilege “ ‘grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person’ ”]; Silverman v Clark, 35 AD3d 1, 11 [2006]).

2021Here, the defendant established that his statements to the press and constituents regarding the failed transaction, which involved the planned transfer of nursing care facilities owned and operated by the County to the entity operated by the plaintiff, constitute a matter of public concern and are thus entitled to a qualified privilege of immunity from liability ( see Schell v Dowling , 240 AD2d 721, 722 ; see also Stukuls v State of New York , 42 NY2d 272, 278-279 ).

2016Accordingly, we find that plaintiffs have failed to establish that “ ‘malice was the one and only cause for the publication’ ” and, therefore, Michael O’Hara is entitled to a qualified privilege (Liberman v Gelstein, 80 NY2d at 439 , quoting Stukuls v State of New York, 42 NY2d 272, 282 [1977]; see Cusimano v United Health Servs.

2020The qualified privilege defense extends to a communication made by one person to another upon a subject in which both have an interest ( see Stillman v Ford , 22 NY2d 48, 53 ; Ferrara v Bank , 153 AD3d 671, 673 ; Kamchi v Weissman , 125 AD3d 142, 158 ).

2018As a general rule, a cause of action predicated on alleged defamatory statements is subject to dismissal if the statements are insufficiently pleaded, constitute nonactionable opinion, or are subject to a qualified privilege defense ( see Arvanitakis v Lester, 145 AD3d 650, 652 ). " A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege'" ( Ferrara v Bank, 153 AD3d 671, 673 , quoting Stillman v Ford, 22 NY2d 48, 53 ).

2024"While [the State's] duty is nondelegable, it is measured by the courts with consideration [*11]given to the proper limits on intrusion into the municipality's planning and decision-making functions [and] in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision" ( Friedman v State of New York , 67 NY2d 271 , 283 , see also, Alexander v Eldred , 63 NY2d 460, 465-466 [1984]; Weiss v Fote , 7 NY2d 579, 585-586 [1960]).

2024Applying the doctrine of qualified immunity, the State may be held liable when it is evident that its study of a traffic condition is "plainly inadequate or there is no reasonable basis for its traffic plan" ( Friedman v State of New York , 67 NY2d at 283 ; citing, Alexander v Eldred , 63 NY2d 460, 465-466 [1984]; see also, Weiss v Fote , 7 NY2d 579, 589 [1960]).

2025A qualified privilege is a defense to slander and shields an otherwise defamatory statement "made to persons who have some common interest in the subject matter." Foster v. Churchill, 87 NY2d 744, 751 ; see Loughry v. Lincoln First Bank, N.A., 67 NY2d 369, 376 (1986); Wilcox v. Newark Val.

2020Even assuming that the alleged defamatory statements were libelous per se ( see Gjonlejak v Sot , 308 AD2d 471, 473-474 ), we agree with the court's determination that the statements were protected by a qualified privilege based on the moving defendants' common interest in maintaining the safety of their shared workplace ( see Liberman v Gelstein , 80 NY2d 429, 437 ; Loughry v Lincoln First Bank , 67 NY2d 369, 376 ).

2025To overcome the qualified privilege, the person seeking disclosure must make a "clear and specific showing that the [information sought]: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source" (Civil Rights Law § 79-h [c]; see O'Neill v Oakgrove Constr. , 71 NY2d 521, 527 [1988]).

2025Footnote 3: Plaintiff's contention that only two of the 12 deposition questions proposed for Abraham would be covered by the qualified privilege is unpreserved for review ( see O'Neill v Oakgrove Constr. , 71 NY2d at 530 ).

2025A communication made by an individual to a law enforcement officer is subject to a qualified, not absolute, privilege ( Stega v New York Downtown Hosp ., 31 NY3d 661, 670 [2018]; Toker v Pollak , 44 NY2d at 220; Sagaille v Carrega , 194 AD3d 92 [1st Dept 2021]; Mohen v Stepanov , 59 AD3d 502, 504-505 [2d Dept 2009]; Chapo v Premier Liquor Corp. , 259 AD2d 1050 [3d Dept 1990][defendant was "entitled to a qualified privilege for communications made in good faith to the police regarding the commission of a crime"]; Christenson v Gutman , 249 AD2d 805, 807 [3d Dept 1998][qualified privilege applie

2025A qualified privilege places the burden of proof on the petitioner to show that the communications were not made in good faith but were motivated solely by malice ( see Mohen v Stepanov , 59 AD3d at 505 ; see also Stega v New York Downtown Hosp ., 31 NY3d at 673 ; Toker v Pollak , 44 NY2d at 219).

2015As to the City, it is well settled that “[a] municipality is accorded a qualified immunity from liability arising out of a highway planning decision, but may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” (Winney v County of Saratoga, 8 AD3d 944, 945 [2004] [internal quotation marks and citations omitted]; see Affleck v Buckley, 96 NY2d 553, 556 [2001]; Friedman v State of New York, 67 NY2d 271, 284 [1986]).

2007“A municipality is ‘accorded a qualified immunity from liability arising out of a highway planning decision,’ but ‘may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan’ ” (Winney v County of Saratoga, 8 AD3d 944, 945 [2004], quoting Friedman v State of New York, 67 NY2d 271, 283-284 [1986] [internal citation omitted]; see Affleck v Buckley, 96 NY2d 553, 556 [2001]).

2016Although a qualified privilege may be lost by proof that the defendant acted out of malice (see Park Knoll Assoc. v Schmidt, *688 59 NY2d 205, 209 [1983]; Segall v Sanders, 129 AD3d 819, 820 [2015]), in opposition to the defendants’ motion, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements in the flyers were motivated solely by malice (see Liberman v Gelstein, 80 NY2d at 439 ; Segall v Sanders, 129 AD3d at 821 ; Broich v McGann, 92 AD3d 710, 711 [2012]; Ferguson v Sherman Sq.

2015(Park Knoll Assoc. v Schmidt, 59 NY2d 205, 208 [1983].) Good faith communications made by a party having an interest in the subject, or a moral or societal duty to speak, are protected by a qualified privilege if made to a party having a corresponding interest.

2020Plaintiff's defamation claim fails because plaintiff fails to allege one allegedly defamatory statement was published to a third-party, an essential element of a defamation claim ( Stepanov v Dow Jones & Co., Inc. , 120 AD3d 28 , 34 [1st Dept 2014]), and the second alleged defamatory statement between defendants' employees regarding his conduct at work is protected by a qualified privilege ( see Williams v Varig Brazilian Airlines , 169 AD2d 434, 438 [1st Dept 1991], lv denied 78 NY2d 854 [1991]; see also Present v Avon Prods.. , 253 AD2d 183, 187-188 [1st Dept 1999], lv dismissed 93 NY2d 1032

2018Issues of fact exist as to whether Harris acted with constitutional malice, i.e., whether he made the statements knowing that they were false or recklessly disregarding whether they were false, so as to overcome the qualified privilege that undisputedly attaches to the statements ( see Present v Avon Prods. , 253 AD2d 183, 188 [1st Dept 1999], lv dismissed 93 NY2d 1032 [1999]).

2025"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." Grier v. Johnson, 232 AD2d 846,847 (3 rd Dept. 1996).

2012Supreme Court properly determined that the statements made to Fredenburg and Paulhamus are protected by a qualified privilege. 2 “ ‘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’ ” (Lerwick v Krna, 29 AD3d 1206, 1208 [2006], lv denied 7 NY3d 712 [2006], quoting Grier v Johnson, 232 AD2d 846, 847 [1996]; see Liberman v Gelstein, 80 NY2d 429, 437 [1992]).

2024On a motion for summary judgment dismissing a defamation cause of action, such cause of action is properly dismissed " 'where a qualified privilege obtains and the plaintiff[ ] offer[s] an insufficient showing of actual malice' " ( Shenoy v Kaleida Health , 158 AD3d 1323 , 1323 [4th Dept 2018] [emphasis added], quoting Trails W. v Wolff , 32 NY2d 207, 221 [1973]).

2024As long as there was a "full opportunity to conduct discovery," a plaintiff "must be held to the burden of adducing clear and convincing evidence of actual malice at the summary judgment stage" ( Kipper v NYP Holdings Co., Inc. , 12 NY3d 348, 357 [2009], citing Anderson v Liberty Lobby Inc. , 477 US 242, 257 [1986]; see also Trails W. v Wolff , 32 NY2d 207, 221 [1973] ["It is well settled that summary judgment is properly granted where a qualified privilege obtains and the plaintiffs offer an insufficient showing of actual malice"]).

2008However, where the plaintiff can demonstrate that the communication made by the defendant was not made in good faith but was motivated solely by malice, the protection provided by the qualified privilege will be inapplicable (see Liberman v Gelstein, 80 NY2d at 437-439 ). “ ‘Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege’ ” (Golden v Stiso, 279 AD2d 607 , 608 [2001], quoting Kamerman v Kolt, 210 AD2d 454, 455 [1994]).

2007The defendants established their prima facie entitlement to summary judgment by demonstrating that a qualified privilege applied to the challenged statements, as they were made in the discharge of a private duty and in furtherance of a common interest of a religious organization (see Sieger v Union of Orthodox Rabbis of U.S. & Can., 1 AD3d 180, 182 [2003]; Kamerman v Kolt, 210 AD2d 454, 455 [1994]; Matter of Kantor v Pavelchak, 134 AD2d 352, 353 [1987]; cf. Mihlovan v Grozavu, 72 NY2d 506, 509 [1988]).

2014This heightened standard is grounded in the legislature’s recognition that, although the exercise of the privileges granted in section 1104 may increase the risks to pedestrians and other drivers, emergency personnel “should be afforded a qualified privilege to disregard [certain traffic] laws where necessary to carry out their important responsibilities” (Saari nen, 84 NY2d at 502 ).

2008Vehicle and Traffic Law § 1104 grants operators of authorized emergency vehicles a qualified privilege to disregard certain traffic laws when they are involved in an emergency operation (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Saarinen v Kerr, 84 NY2d 494, 497 [1994]).

2004A qualified privilege does, however, negate any presumption of implied malice flowing from a defamatory statement, and places the burden of proof on this issue upon the plaintiff (id., citing Lovell Co. v Houghton, 116 NY 520, 525 [1889]; Doyle v Clauss, 190 App Div 838, 842 [1920]).

1989Even assuming that the allegations of the amended complaint are sufficiently specific to be construed as defamatory, the communications therein would be protected by a qualified privilege (see, Mihlovan v Grozavu, 72 NY2d 506, 509 ; Lovell Co. v Houghton, 116 NY 520, 526 ).

2012Plan of Greater N.Y., 7 NY2d 56, 60 [1959], quoting Bingham v Gaynor, 203 NY 27, 31 [1911] [the qualified privilege “ ‘grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person’ ”]; Silverman v Clark, 35 AD3d 1, 11 [2006]).

2012Plan of Greater N.Y., 7 NY2d 56, 60 [1959], quoting Bingham v Gaynor, 203 NY 27, 31 [1911] [the qualified privilege “ ‘grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person’ ”]; Silverman v Clark, 35 AD3d 1, 11 [2006]).

2022A statement is protected by a qualified privilege "when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or social duty to speak, and the communication is made to a person having a corresponding interest or duty" ( Garson v Hendlin , 141 AD2d 55, 60 [internal quotation marks omitted]).

2022They ranged from troublingly offensive name-calling and physically intimidating acts (such as throwing Daniel's racquet bag and kicking his beverage bottle), to posting embarrassing videos of other players on social media, and even suggesting, in a message sent through Instagram, that a child should "hang [him]self in the shower." Society has a strong interest in not "stifling" ( Liberman v Gelstein , 80 NY2d at 437 ) reports of this sort of behavior to the appropriate authorities, whether they be school officials, or, as here, sports administrators ( see Garson v Hendlin , 141 AD2d at 62 ["it

2006Contrary to the motion court’s finding, under the circumstances those statements and the statement made by defendant-appellant Reid in a hospital incident report were protected by a qualified privilege (see Kasachkoff v City of New York, 107 AD2d 130, 135 [1985], affd 68 NY2d 654 [1986]).

2002As the Supreme Court properly determined, because the alleged defamatory statements were communications made by one person to another upon a subject in which they both had an interest, the statements are protected by a qualified privilege (see Foster v Churchill, 87 NY2d 744, 751 ; Bopp v Institute for Forensic Psychology, 227 AD2d 363, 364 ; Matter of Levine v Board of Educ. of City of N.Y., 186 AD2d 743, 745 ; Kasachkoff v City of New York, 107 AD2d 130, 135 ).