Lerwick v Krna

[*1] Lerwick v Krna 2005 NY Slip Op 52341(U) [18 Misc 3d 1131(A)] Decided on September 16, 2005 Supreme Court, Chenango County Dowd, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 16, 2005
Supreme Court, Chenango County

Oscar C. Lerwick, Jr., Plaintiff,

against

Steven P. Krna, Defendant.



2003X760



Smyk & Smyk, LLP, Attorneys for Defendant Krna, 111-115 Court Street, Binghamton, NY 13901.

Jacobs & Jacobs, Michael A. Jacobs, Esq., Attorneys for Plaintiff, 31 Lake Street, PO Box 159, Stamford, NY 12167.

Kevin M. Dowd, J.

Defendant has made a motion for summary judgment. In support of his motion, Defendant has submitted his own Affidavit and the Affirmation of Stephen Smyk, Esq., with attached exhibits. Plaintiff opposes the motion and has cross moved to compel discovery. Plaintiff has submitted his own Affidavit and the Affirmation of Michael Jacobs, Esq., together with annexed exhibits. No oral arguments were requested on these motions.

This action, and several others, arise out of Plaintiff's loss of employment as President of Broome Cooperative Insurance Company (hereinafter BCIC) and statements made by various [*2]Directors, including Defendant, prior to that event.. The Complaint sets forth much of the history of BCIC and its predecessor. Defendant previously moved for dismissal of Plaintiff's Complaint. This Court dismissed all allegations of slander, except those contained in paragraphs 39, 40 and 41. The Court found that the qualified, common interest privilege may completely protect Defendant from these claims. The Court could not consider the privilege on a motion to dismiss, since it is an affirmative defense. Accordingly, Defendant now seeks summary judgment on these remaining allegations.

The Court will first address the procedural objections to Defendant's motion which were raised by Plaintiff. Plaintiff claims that the Notice of Motion is defective and that Defendant failed to furnish a copy of his Answer to the Court. The Court has reviewed the Notice of Motion and finds that it substantially complies with the official Notice of Motion form. See 22NYCRR §202.7. Moreover, it is disingenuous for Plaintiff to claim the Notice of Motion doesn't inform him of the grounds for the summary judgment motion given the previous ruling in this case.

Similarly, Plaintiff has in no way been prejudiced by Defendant's omission of his Answer from his moving papers. The Court notes that the requirement of CPLR 2214[c] is for the benefit of the Court. The Court is thoroughly familiar with the Complaint and Answer in this case. Moreover, any non-prejudicial omission or irregularity may be disregarded by the court. CPLR 2001.

Turning then to the substance of Defendant's motion, in order to prevail on a summary judgment motion, the movant must present admissible proof sufficient to warrant the court directing judgment in its favor as a matter of law. Once the movant has met this burden, the burden shifts to the opposing party, who must show by admissible evidence that there are triable issues of fact. Zuckerman v. City of New York, 49 NY2d 557, 404 NE2d 718, 427 NYS2d 595 (1980); Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 390 NE2d 298, 416 NYS2d 790 (1979); Wagner v. Baird, 208 AD2d 1087, 617 NYS2d 919 (3rd Dept. 1994).

More specifically, in a case such as this, the defendant must support the motion with competent proof establishing prima facie that the alleged communications were made by one person to another upon a subject in which both have an interest. Demas v. Levitsky, 291 AD2d 653 (3rd Dept. 2002). If such a showing is made, the burden shifts to the plaintiff to demonstrate that the defendant spoke with malice as defined under the common-law or constitutional standard. Id. at 661.

Defendant has satisfied his burden of proof. All of the people referred to in the relevant paragraphs of the Complaint were Directors of BCIC. The statements were made at a Board meeting to other Directors and/or to employees of BCIC. Certainly, information should be able to flow between these people without impediment. See Liberman v. Gelstein, 80 NY2d 429 (1992). As a result, Defendant has presented sufficient evidence to establish the qualified, common interest privilege.

As stated above, the burden now shifts to Plaintiff to establish that Defendant spoke with malice. Demas, at 661. The common law definition of malice is spite or ill will. Liberman, at 437. The Court of Appeals has held that this refers to the speaker's motivation for making the statements, not to the defendant's general feelings about the plaintiff. Liberman, at 439. More specifically, the Court stated, "If the defendant's statements were made to further the interest protected by the privilege, it matters not that defendant also despised plaintiff." Id. Only if a [*3]jury could reasonably conclude that malice was the one and only cause for the communication has Plaintiff raised a triable issue of fact. Id.

Plaintiff has not satisfied this standard. It is not sufficient for Plaintiff to state in his affidavit that Defendant was "motivated by bad faith and malicious desire." Similarly, Plaintiff has not raised an issue of fact by informing the Court that Defendant has subsequently become employed by BCIC. In light of the context of the communications and to whom they were published, a jury could not reasonably conclude that Defendant was not advancing a common interest.

To satisfy the constitutional standard for malice, a plaintiff must submit proof that the statements were made with a high degree of awareness of their probable falsity Liberman, 80 NY2d at 439. One of the subject statements involved merger discussions with another insurance company. While Plaintiff denies he attempted to negotiate such a merger, he does admit that he investigated such a possibility. Another statement referred to Plaintiff's deviations from the written policies of BCIC. Once again, Plaintiff denies such action, but does admit he told Defendant that he took certain actions that he felt were in the company's best interest. The third statement involves a twenty million dollar lawsuit. While no specifics have been provided to the Court, it appears the parties are aware of what case was being referenced. Plaintiff, however, has failed to present any evidence of the falsity of this statement. Based upon the foregoing, Plaintiff has failed to raise a triable issue of fact under the constitutional definition for malice.

The Court notes that Plaintiff has claimed that he has been impeded in responding to this motion because of Defendant's failure to respond to disclosure requests. Plaintiff, however, has failed to specify what information he would require for this motion that is in the possession of Defendant and is unavailable to Plaintiff. See CPLR 3212(f).

Based upon the foregoing, Defendant's motion for summary judgment is granted and Plaintiff's motion is denied.

This Decision shall constitute the Order of the Court.

Dated:, 2005

Norwich, New York

Justice Supreme Court