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Supreme Court, Appellate Division, Fourth Department, New York.

Patrick S. TEIXEIRA, Plaintiff-Appellant, v. Cheryl KORTH, Patricia Croft and Mount St. Mary's Hospital, Defendants-Respondents.

Decided: December 30, 1999

PRESENT:  LAWTON, J.P., WISNER, PIGOTT, JR., HURLBUTT and SCUDDER, JJ. Kevin J. Bauer, Buffalo, for plaintiff-appellant. Angelo J. Morinello, Lewiston, for defendant-respondent Cheryl Korth. Michael J. Willett, Buffalo, for defendant-respondent Mount St. Mary's Hospital. David G. Boniello, for defendant-respondent Patricia Croft.

On February 25, 1994, plaintiff, an employee of defendant Mount St. Mary's Hospital (Hospital), fell in the Diagnostic Imaging Department.   A few days after the accident, one of plaintiff's co-workers, defendant Patricia Croft, reported to her supervisor, defendant Cheryl Korth, that she had spoken with plaintiff's brother, who told her that plaintiff had fallen in a driveway.   Korth reported that information to her supervisor, who informed personnel in Human Resources.   After obtaining a written statement from Korth concerning the information she obtained from Croft, the Hospital controverted plaintiff's claim for Workers' Compensation benefits.   At the Workers' Compensation hearing, plaintiff's brother testified that he never made the remark attributed to him by Croft and that he first learned of his brother's fall from Korth.   The Workers' Compensation Board found in favor of plaintiff.   Plaintiff then commenced this defamation action against the Hospital, Croft and Korth.   Supreme Court granted the motions of the Hospital and Korth and the cross motion of Croft for summary judgment dismissing the complaint.   The court held that the statements were protected by a qualified privilege and that plaintiff failed to raise a triable issue of fact whether the statements were made with malice.

 We agree with the court that the statements are protected by a qualified privilege (see, Rabideau v. Albany Med. Ctr. Hosp., 195 A.D.2d 923, 600 N.Y.S.2d 825).   Therefore, absent an affirmative showing that the statements were made with malice or ill will, knowledge of their falsity or reckless disregard for their accuracy, a defamation action does not lie (see, Bisso v. De Freest, 251 A.D.2d 953, 674 N.Y.S.2d 824).   Once a qualified privilege is established, the burden shifts to plaintiff to demonstrate with “convincing clarity” that the statements were made with malice (Freeman v. Johnston, 84 N.Y.2d 52, 57, 614 N.Y.S.2d 377, 637 N.E.2d 268, cert. denied 513 U.S. 1016, 115 S.Ct. 576, 130 L.Ed.2d 492).

 The court properly granted the motion of Korth and dismissed the complaint against her.   Plaintiff failed to demonstrate with “convincing clarity” that the reporting by Korth to her supervisor the information that she received from a coemployee was done with knowledge of the falsity of the information or with reckless disregard for the accuracy of the information.   Plaintiff contends that Korth knew that Croft's statements were false because Korth saw plaintiff fall at work.   That does not mean, however, that plaintiff could not also have fallen in a driveway.

 The court erred, however, in granting the cross motion of Croft and dismissing the complaint against her.   Although Croft testified at a deposition that plaintiff's brother told her that plaintiff fell in a driveway, plaintiff's brother testified at the Workers' Compensation hearing that he never encountered Croft after his brother's accident, nor did he make the statement attributed to him.   Plaintiff, therefore, raised an issue of fact whether Croft made the statement with knowledge of its falsity (see, Sanderson v. Bellevue Maternity Hosp., 259 A.D.2d 888, 686 N.Y.S.2d 535).

 The court properly granted the motion of the Hospital and dismissed the complaint against it.   If Croft had fabricated the conversation with plaintiff's brother, she would not have been acting within the scope of her employment and the Hospital would not be liable for her conduct (see, Joshua S. v. Casey, 206 A.D.2d 839, 615 N.Y.S.2d 200;  Annonio v. Balzano, 139 A.D.2d 943, 944, 527 N.Y.S.2d 923, lv. denied 72 N.Y.2d 806, 532 N.Y.S.2d 847, 529 N.E.2d 177).

Order unanimously modified on the law and as modified affirmed without costs.


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