ZION v. NYP HOLDINGS INC (2005)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 20, 2004, which granted defendants' motion for partial summary judgment dismissing plaintiff's cause of action alleging defamation, unanimously affirmed, without costs.

The alleged defamatory statement, in which defendant McManus, defendant New York Post's editorial page editor, expressed the view that plaintiff, one of the paper's columnists, had fabricated the premise of one of his columns, was non-actionable since it amounted to no more than an expression of opinion based on disclosed facts (see Gross v. New York Times Co., 82 N.Y.2d 146, 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163 [1993] ).   In any event, the statement, contained in a communication by McManus to plaintiff and the Post's publisher and editor-in-chief upon a subject in which they all had an interest, i.e., plaintiff's job performance at the paper, enjoyed a qualified privilege (see Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992];  Williams v. Varig Brazilian Airlines, 169 A.D.2d 434, 438, 564 N.Y.S.2d 328 [1991], lv. denied 78 N.Y.2d 854, 573 N.Y.S.2d 467, 577 N.E.2d 1059 [1991] ).   Plaintiff did not adduce evidence permitting an inference that the statement was made with either actual or common-law malice and thus failed to raise a triable issue as to whether the privilege had been abused (see Liberman, 80 N.Y.2d at 438, 590 N.Y.S.2d 857, 605 N.E.2d 344).   There is no evidence that McManus had knowledge that the complained-of statement was false or that he acted “with reckless disregard of whether it was false or not” (New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 [1964] ).   Nor was there evidence that the sole motive for the statement was spite or ill will (see Liberman, 80 N.Y.2d at 439, 590 N.Y.S.2d 857, 605 N.E.2d 344).

We have considered plaintiff's remaining arguments and find them unavailing.