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

Dominick FURCI, et al., Appellants, v. A.F.C. CONTRACTING ENTERPRISES, INC., et al., Respondents.

Decided: November 30, 1998

COPERTINO, J.P., SULLIVAN, KRAUSMAN and FLORIO, JJ. Lloyd Somer, New York City, for appellants. Lian, Malapero & Prisco, New York City (Joseph J. Prisco, of counsel), for respondents.

In an action to recover damages for defamation, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dye, J.), dated October 21, 1997, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff alleged in the complaint that the defendants, the former employers of the plaintiff Dominick Furci, defamed him by providing negative information to his prospective employers that was false.   The defendants deny making the statements and furthermore claim “[a] qualified privilege exists for the purpose of permitting a prior employer to give a prospective employer honest information as to the character of a former employee even though such information may prove ultimately to be inaccurate” (De Sapio v. Kohlmeyer, 52 A.D.2d 780, 781, 383 N.Y.S.2d 16;  Khuri v. M.W. Kellogg Co., 33 A.D.2d 736, 305 N.Y.S.2d 873).  “Once a qualified privilege is shown to exist, the burden of proof shifts to the plaintiff to offer evidentiary facts to establish that the communication was made in bad faith and was motivated solely by malice * * * Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat a claim of qualified privilege” (Shover v. Instant Whip Processors, 240 A.D.2d 560, 658 N.Y.S.2d 661;  see also, Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605 N.E.2d 344).   Since the plaintiffs failed to sustain the burden of demonstrating that, even if the statements were made, the defendants acted with either common-law or constitutional malice, summary judgment dismissing the complaint was properly granted to the defendants.


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