RUDA v. STATE (2001)

In a claim to recover damages for defamation, the claimant appeals from an order of the Court of Claims (Lebous, J.), entered December 8, 1999, which denied his motion to compel discovery and granted the defendant's cross motion for summary judgment dismissing the claim.

ORDERED that the order is affirmed, with costs.

 The claimant, the owner of a “licensed cigarette agent”, alleged that Robert Shepherd, the Deputy Commissioner for Enforcement of the New York State Department of Taxation and Finance, made allegedly defamatory statements as to alleged violations by the claimant of the State tax laws regarding the sale of cigarettes.   The defendant established its entitlement to summary judgment as a matter of law on the ground that the statements were absolutely privileged (see, Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 208, 464 N.Y.S.2d 424, 451 N.E.2d 182;  Clark v. McGee, 49 N.Y.2d 613, 427 N.Y.S.2d 740, 404 N.E.2d 1283).   The claimant failed to present evidence that Shepherd's statements were not connected to his official duties, so as to overcome the privilege (see, Lombardo v. Stoke, 18 N.Y.2d 394, 276 N.Y.S.2d 97, 222 N.E.2d 721;  Schell v. Dowling, 240 A.D.2d 721, 662 N.Y.S.2d 771).

 Furthermore, the defendant established that it was entitled to summary judgment on the defense of qualified immunity because Shepherd's statements were communicated only to persons with a common interest in the subject matter of the communication (see, Conciatori v. Longworth, 259 A.D.2d 459, 686 N.Y.S.2d 68).   In opposition, the claimant failed to present evidentiary proof sufficient to demonstrate that the defendant's statements were motivated by malice (see, Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605 N.E.2d 344;  Conciatori v. Longworth, supra).

The claimant's remaining contention is academic in light of our determination and, in any event, is without merit.

MEMORANDUM BY THE COURT.