CROWE DEEGAN LLP v. SCHMITT (2007)

In an action, inter alia, to recover damages for defamation, the defendant appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered April 14, 2006, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was for summary judgment dismissing so much of the third cause of action as alleged defamation, libel, and libel per se, based on the challenged statement appearing in the Newsday article dated February 29, 2004, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, with costs to the plaintiff.

 The challenged statement appearing in the Newsday article dated February 29, 2004, made by the defendant during the course of a legislative hearing, is entitled to absolute privilege (see Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209, 464 N.Y.S.2d 424, 451 N.E.2d 182;  Schettino v. Alter, 140 A.D.2d 600, 601-602, 528 N.Y.S.2d 862).

 In response to the defendant's showing of his prima facie entitlement to summary judgment dismissing the remainder of the complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572), the plaintiff demonstrated the existence of an issue of fact from which a reasonable jury could find “actual malice with convincing clarity” (Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514, 104 S.Ct. 1949, 80 L.Ed.2d 502;  see New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686;  Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 474-475, 605 N.Y.S.2d 218, 626 N.E.2d 34).

The defendant's remaining contentions are without merit.