GLAZIER v. Robert A. Rimbo, et al., Defendants–Respondents. (2018)

Order, Supreme Court, New York County (George J. Silver, J.), entered June 20, 2016 which granted defendants Mark S. Sisk and Episcopal Diocese of New York's and defendants Robert Rimbo and Metropolitan New York Synod–Evangelical Lutheran Church in America's motions for summary judgment dismissing the complaint as against them, and denied defendants Lyndon Harris and St. John's Lutheran Church's motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiffs allege that defendant Harris made defamatory statements about them at a retreat of members of defendant St. John's Lutheran Church council.  Issues 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 A.D.2d 183, 188, 687 N.Y.S.2d 330 [1st Dept. 1999], lv dismissed 93 N.Y.2d 1032, 697 N.Y.S.2d 555, 719 N.E.2d 914 [1999] ).  There is evidence that casts doubt upon Harris's account of a meeting he had with a parishioner, which lies at the heart of the case against him.  Harris claims that his statements at the retreat were limited to the (undisputed and non-defamatory) fact that plaintiffs had been named as beneficiaries of the parishioner's will.  Affidavits by two attendees at the church council retreat say otherwise;  the affiants say that Harris asserted that plaintiffs exercised undue influence over Jaffe and that they behaved immorally.

Plaintiffs failed to raise an issue of fact as to common-law malice since the record shows that Harris's statements were made, at least in part, to further the interest protected by the qualified privilege, i.e., the well-being of St. John's and Harris's self-interest (see Liberman v. Gelstein, 80 N.Y.2d 429, 439, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992];  Stukuls v. State of New York, 42 N.Y.2d 272, 279, 397 N.Y.S.2d 740, 366 N.E.2d 829 [1977] ).  That Harris may also have harbored a degree of ill will toward plaintiffs is immaterial.

The record demonstrates conclusively that defendants Sisk and Episcopal Diocese of New York and Rimbo and Metropolitan New York Synod–Evangelical Lutheran Church in America cannot be held liable for Harris's alleged defamatory statements under the doctrine of respondeat superior because they did not exercise the requisite control over Harris (see Abouzeid v. Grgas, 295 A.D.2d 376, 743 N.Y.S.2d 165 [2d Dept. 2002] ).  Contrary to plaintiffs' contention, there is nothing in the record that shows that, in engaging in the conduct at issue, Harris was acting with these defendants' involvement or approval (cf. Cantrell v. Forest City Publ. Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 [1974] [editor who approved idea for magazine article could be held vicariously liable for damage caused by knowing falsehoods in the article] ).