WEHLING v. BAYEX INC

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

Rodney WEHLING, Respondent, v. BAYEX, INC., and Joel L. Allen, Appellants.

Decided: March 13, 1998

Before GREEN, J.P., and LAWTON, HAYES, BALIO and BOEHM, JJ. Phillips, Lytle, Hitchcock, Blaine & Huber (Mark L. Suher, of counsel), Rochester, for Appellants. Donald L. Summer by Frank Aldi, Williamsville, for Respondent.

 Supreme Court properly denied that part of defendants' motion for summary judgment seeking dismissal of the defamation cause of action.   The allegations in the amended complaint, together with the attached documents, meet the particularity requirement of CPLR 3016(a) (see, Sassower v. New York News, 101 A.D.2d 1020, 1021, 476 N.Y.S.2d 698;  see also, Chime v. Sicuranza, 221 A.D.2d 401, 402, 633 N.Y.S.2d 536).   Although qualified privileges would ordinarily attach to the communications allegedly made to law enforcement officials (see, Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1, 376 N.E.2d 163) and in internal corporate documents (see, Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 665 N.E.2d 153;  Mansour v. Abrams, 144 A.D.2d 905, 534 N.Y.S.2d 602), plaintiff raised triable issues of fact whether those communications were made with malice (see, Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 376, 502 N.Y.S.2d 965, 494 N.E.2d 70;  O'Neil v. Peekskill Faculty Assoc., 120 A.D.2d 36, 43, 507 N.Y.S.2d 173, lv. dismissed 69 N.Y.2d 984, 516 N.Y.S.2d 1027, 509 N.E.2d 362).

 The court also properly denied that part of the motion seeking dismissal of that part of the third cause of action alleging that defendants unlawfully discriminated against plaintiff because of a physical disability (see, Executive Law § 296[1][a] ).   Although defendants submitted proof that plaintiff was fired for misconduct, plaintiff responded with proof that “the misconduct claimed as the reason for firing plaintiff [is] a sham, giving rise to an inference of an improper motive” (Miano v. Caterpillar Tractor Co., 184 A.D.2d 807, 808, 584 N.Y.S.2d 234).

 Defendants are entitled to summary judgment, however, dismissing that part of the third cause of action alleging a violation of Workers' Compensation Law § 120.   That alleged violation falls within the exclusivity of the Workers' Compensation Law (see, Williams v. Brooklyn Union Gas Co., 819 F.Supp. 214, 231;  Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412, 416, 482 N.Y.S.2d 720, 472 N.E.2d 682).   We therefore modify the order by dismissing that part of the third cause of action alleging defendants' violation of Workers' Compensation Law § 120 and otherwise affirm.

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

MEMORANDUM: