COOPER v. HODGE

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

David L. COOPER, M.D., Plaintiff-Respondent, v. Charles J. HODGE, Jr., M.D., Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. Eliot Spitzer, Attorney General, Albany (Robert M. Goldfarb of Counsel), for Defendant-Appellant. Duane Morris LLP, Hamilton, New Jersey (Katherine Benesch of the New Jersey, Pennsylvania and District of Columbia Bars, Admitted ProHac Vice, of Counsel), and Fix Spindelman Brovitz and Goldman, P.C., Syracuse, for Plaintiff-Respondent.

Plaintiff commenced this action seeking damages for defamation, tortious interference with contract or prospective contractual relations and intentional infliction of emotional distress.   According to plaintiff, defendant made false and disparaging comments concerning plaintiff's performance as a neurosurgery resident in the Department of Neurosurgery at the State University of New York Upstate Medical University (Upstate).

Defendant moved for summary judgment dismissing the complaint following the completion of discovery, but Supreme Court initially rejected that motion as untimely, and the court denied defendant's subsequent motion for leave to submit a motion for summary judgment.   We reversed the order denying defendant's subsequent motion and granted the motion (Cooper v. Hodge, 13 A.D.3d 1111, 787 N.Y.S.2d 551).   Defendant now appeals from the order denying his motion for summary judgment dismissing the complaint on the merits.   We again reverse.

 Defendant established his entitlement to summary judgment dismissing the defamation cause of action by establishing that his comments concerning plaintiff's performance at Upstate were substantially true (see San George v. Eden Cent. School Sys., 6 A.D.3d 1139, 1140, 775 N.Y.S.2d 676;  Millennium of Rochester v. Town of Webster, 305 A.D.2d 1014, 1015, 758 N.Y.S.2d 582;  Smith v. United Church Ministry, 212 A.D.2d 1038, 1039, 623 N.Y.S.2d 46, lv. denied 85 N.Y.2d 806, 627 N.Y.S.2d 322, 650 N.E.2d 1324).   He also established the separate defense that his comments were protected by statutory and common-law privileges (see Public Health Law § 2805-m [3];  Education Law § 6527[5];  Farooq v. Coffey, 206 A.D.2d 879, 616 N.Y.S.2d 112;  see also Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 665 N.E.2d 153;  Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344).   Plaintiff “failed to sustain his burden of raising triable questions of fact on the issues of falsity and malice” (Farooq v. Morelli, 206 A.D.2d 880, 880, 616 N.Y.S.2d 280;  see Trails W. v. Wolff, 32 N.Y.2d 207, 221, 344 N.Y.S.2d 863, 298 N.E.2d 52;  Golden v. Stiso, 279 A.D.2d 607, 608, 720 N.Y.S.2d 164;  Farooq, 206 A.D.2d 879, 616 N.Y.S.2d 112;  cf. Purgess v. Sharrock, 33 F.3d 134, 141).   Plaintiff's allegations of malice are insufficient to raise a triable issue of fact because “ ‘[m]ere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege’ ” (Golden, 279 A.D.2d at 608, 720 N.Y.S.2d 164, quoting Kamerman v. Kolt, 210 A.D.2d 454, 455, 621 N.Y.S.2d 97;  see Anas v. Brown, 269 A.D.2d 761, 702 N.Y.S.2d 732;  Sanderson v. Bellevue Maternity Hosp., 259 A.D.2d 888, 891, 686 N.Y.S.2d 535;  Grier v. Johnson, 232 A.D.2d 846, 849, 648 N.Y.S.2d 764).

 We likewise conclude that defendant established his entitlement to summary judgment dismissing the cause of action for tortious interference with contract or prospective contractual relations.   Defendant met his burden with respect to tortious interference with contract by establishing as a matter of law that plaintiff had no valid, existing contract with a third party (see Jim Ball Chrysler v. Marong Chrysler-Plymouth, 19 A.D.3d 1094, 1095, 796 N.Y.S.2d 804, lv. denied 5 N.Y.3d 709, 803 N.Y.S.2d 30, 836 N.E.2d 1153;  see generally Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370), and he met his burden with respect to tortious interference with prospective contractual relations by establishing as a matter of law that his alleged conduct did not amount “to a crime or an independent tort” (Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100;  see John Hancock Life Ins. Co. v. 42 Delaware Ave. Assoc., 15 A.D.3d 939, 940-941, 790 N.Y.S.2d 344, lv. denied in part and dismissed in part 5 N.Y.3d 819, 803 N.Y.S.2d 27, 836 N.E.2d 1149;  cf. Purgess, 33 F.3d at 142).

 Finally, we conclude that defendant established his entitlement to summary judgment dismissing the cause of action for intentional infliction of emotional distress.   Defendant established that his conduct was not so extreme or outrageous “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [internal quotation marks omitted];  see e.g. Clark v. Schuylerville Cent. School Dist., 24 A.D.3d 1162, 1164, 807 N.Y.S.2d 175;  Kondo-Dresser v. Buffalo Pub. Schools, 17 A.D.3d 1114, 1115, 794 N.Y.S.2d 768).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

MEMORANDUM: