BERGER v. TEMPLE BETH EL OF GREAT NECK (2007)

In an action to recover damages for defamation, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), dated April 7, 2006, as granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiff alleged that the defendants defamed him by issuing statements disclosing and explaining the termination of his membership from the defendant Temple Beth-El of Great Neck. The 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 A.D.3d 180, 182, 767 N.Y.S.2d 78;  Kamerman v. Kolt, 210 A.D.2d 454, 455, 621 N.Y.S.2d 97;  Matter of Kantor v. Pavelchak, 134 A.D.2d 352, 353, 520 N.Y.S.2d 830;  cf. Mihlovan v. Grozavu, 72 N.Y.2d 506, 509, 534 N.Y.S.2d 656, 531 N.E.2d 288).

In opposition, the plaintiff failed to raise an issue of fact to defeat the qualified privilege.   He failed to raise an issue of fact as to whether the challenged statements were excessively published, as the recipients all shared a common interest (see Stukuls v. State of New York, 42 N.Y.2d 272, 281, 397 N.Y.S.2d 740, 366 N.E.2d 829;  Skarren v. Household Fin. Corp., 296 A.D.2d 488, 489-490, 745 N.Y.S.2d 556;  Anas v. Brown, 269 A.D.2d 761, 763, 702 N.Y.S.2d 732;  cf. Rosen v. Piluso, 235 A.D.2d 412, 652 N.Y.S.2d 104).   The plaintiff also failed to raise an issue of fact as to whether the challenged statements were so extravagant and vituperative that an inference of malice may be made (see Blackman v. Stagno, 35 A.D.3d 776, 778, 828 N.Y.S.2d 152;  cf. Misek-Falkoff v. Keller, 153 A.D.2d 841, 842, 545 N.Y.S.2d 360), or whether the defendants went beyond what was necessary to convey the message concerning the common interest (cf. Vacca v. General Elec. Credit Corp., 88 A.D.2d 740, 741, 451 N.Y.S.2d 869).

 Finally, the plaintiff failed to raise an issue of fact as to whether the statements were made with a high degree of awareness of their probable falsity to establish malice (see Hoyt v. Kaplan, 263 A.D.2d 918, 694 N.Y.S.2d 227;  Feldschuh v. State of New York, 240 A.D.2d 914, 916, 658 N.Y.S.2d 772;  Goldblatt v. Seaman, 225 A.D.2d 585, 586, 639 N.Y.S.2d 438).   The plaintiff's conclusory allegations of malice are insufficient to defeat the claim of qualified privilege (see Golden v. Stiso, 279 A.D.2d 607, 608, 720 N.Y.S.2d 164;  Kamerman v. Kolt, supra ).   Further, even if the plaintiff could prove that the defendants did not investigate the truth of the statements, this alone was not sufficient to raise a triable issue as to malice (see Sweeney v. Prisoners' Legal Servs., 84 N.Y.2d 786, 793, 622 N.Y.S.2d 896, 647 N.E.2d 101;  Hoesten v. Best, 34 A.D.3d 143, 157, 821 N.Y.S.2d 40;  Sanderson v. Bellevue Maternity Hosp., 259 A.D.2d 888, 890, 686 N.Y.S.2d 535).   Accordingly, the Supreme Court correctly granted the defendants' motion for summary judgment dismissing the complaint.