Charles F. Mahoney v Daniel George

Mahoney v George 2006 NY Slip Op 03190 [28 AD3d 1074] April 28, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

Charles F. Mahoney, Appellant, v Daniel George et al., Respondents.

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Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered July 27, 2005. The order granted defendants' motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages arising from eight defamatory statements allegedly made by defendant Daniel George, Assistant Superintendent of defendant Hamburg Central School District (District), and defendant Cheryl Haake, the Principal of the District elementary school where plaintiff was employed as a physical education teacher. The substance of the defamatory statements is that plaintiff engaged in inappropriate conduct with students and that he was forced to resign from previous teaching positions as a result of that conduct. Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint. With respect to the first and fourth causes of action, defendants submitted proof establishing that George and Haake did not make the allegedly defamatory statements that are the subject of those causes of action, and plaintiff failed to raise a triable issue of fact to defeat those parts of defendants' motion (see U.S. Printnet v Chemung Canal Trust Co., 270 AD2d 544, 545-546 [2000]).

We reject plaintiff's contention that the court should have deferred its decision on defendants' motion with respect to the third and eighth causes of action pursuant to CPLR 3212 (f) pending further discovery. In support of their motion with respect to those causes of action, defendants submitted evidence establishing that the person to whom the allegedly defamatory statements that are the subject of those causes of action were made unequivocally denied that the statements were made to him, and nothing in the record indicates that further discovery would lead to evidence of publication (see Snyder v Sony Music Entertainment, 252 AD2d 294, 299 [1999]). Defendants established that the allegedly defamatory statement that is the subject of the seventh cause of action is protected by a qualified privilege, and plaintiff failed to raise an issue of fact whether the statement was motivated by the requisite actual malice to defeat that part of defendants' motion (see Matter of Williams v County of Genesee, 306 AD2d 865, 867 [2003]). Finally, [*2]plaintiff has abandoned any contentions with respect to the propriety of the court's dismissal of the remaining causes of action (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). Present—Hurlbutt, J.P., Gorski, Green, Pine and Hayes, JJ.