SHENOY v. UB MD UB MD (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the first, fourth, and fifth causes of action and as modified the order is affirmed without costs.

Memorandum:  Plaintiff commenced this action alleging, inter alia, causes of action for defamation, injurious falsehood, and tortious interference with business relations against defendant Robert N. Sawyer, Jr., M.D. Plaintiff also asserted a cause of action for defamation against defendant UB/MD, Inc., doing business as UB MD Neurology and/or Jacobs Neurologic Institute (Jacobs).  The cause of action against Jacobs alleges that it is liable on a theory of respondeat superior for purportedly defamatory statements made by Sawyer and defendant Ralph Benedict, M.D. Sawyer and Jacobs (defendants) now appeal from an order that denied their motion to dismiss the complaint against them.

Contrary to defendants' contention, the court properly denied their motion insofar as it sought to dismiss the tortious interference claim against Sawyer (see Smith v. Meridian Tech., Inc., 52 A.D.3d 685, 686–687, 861 N.Y.S.2d 687 [2d Dept. 2008] ).  We agree with defendants, however, that Sawyer's allegedly defamatory statements constitute expressions of pure opinion and are therefore not actionable (see Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 [2008], cert denied 555 U.S. 1170, 129 S.Ct. 1315, 173 L.Ed.2d 584 [2009];  Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550 [1986];  Balderman v. American Broadcasting Cos., 292 A.D.2d 67, 72–73, 738 N.Y.S.2d 462 [4th Dept. 2002], lv denied 98 N.Y.2d 613, 751 N.Y.S.2d 168, 780 N.E.2d 979 [2002] ).  We likewise agree with defendants that Sawyer's “expression of opinion ․ cannot serve as the basis for plaintiff's injurious falsehood claim” (Vitro S.A.B. de C.V. v. Aurelius Capital Mgt., L.P., 99 A.D.3d 564, 565, 952 N.Y.S.2d 531 [1st Dept. 2012], lv denied 21 N.Y.3d 852, 965 N.Y.S.2d 790, 988 N.E.2d 528 [2013] ).  The court therefore erred in denying the motion insofar as it sought to dismiss the defamation and injurious falsehood claims against Sawyer, and we modify the order accordingly.

Our dismissal of the defamation claim against Sawyer, along with our prior dismissal of the defamation claim against Benedict (Shenoy v. Kaleida Health, 158 A.D.3d 1323, 1323–1324, 70 N.Y.S.3d 728 [4th Dept. 2018] ), necessarily requires the dismissal of the defamation claim against Jacobs inasmuch as “an employer cannot be held vicariously liable for the acts of an employee if there has been a determination, on the merits, that the employee [is] not [liable]” for those acts (Wright v. Shapiro, 35 A.D.3d 1253, 1254, 828 N.Y.S.2d 736 [4th Dept. 2006];  see Escobar v. New York Hosp., 111 A.D.2d 128, 129, 489 N.Y.S.2d 508 [1st Dept. 1985] ).  We thus agree with defendants that the court additionally erred in denying their motion insofar as it sought to dismiss the defamation claim against Jacobs, and we therefore further modify the order accordingly.

In light of our determination, defendants' remaining contentions are academic.