Buckley v. Litman

Mahoney, P. J., and Casey, J., dissent and vote to reverse in the following memorandum by Casey, J. Casey, J. (dissenting).

In our view, the mere fact that defendant’s communication to plaintiff’s prospective employer was unsolicited does not destroy the qualified privilege. Such a privilege arises where a person makes a bona fide communication upon a subject in which he has an interest or in connection with which he has a legal, moral or social duty to speak, and the communication is made to a person having a corresponding interest or duty (Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56, 60). This is not a case where the defendant’s communication was made to the general public. Rather, it was limited to the only other family practitioner in the vicinity, with whom plaintiff was about to become associated after leaving his employment with defendant. The communication concerned plaintiff’s unauthorized removal of patients’ records, a subject in which both defendant, as the former employer, and Dr. Chalom, as the prospective employer, had an interest. “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 AD2d 780, 781; see, also, Konowitz v Archway School, 65 AD2d 752). Accordingly, we are of the view that the communication was protected by a qualified privilege, and the fact that defendant was acting as a volunteer will not, in and of itself, defeat the privilege (Doyle v Clauss, 190 App Div 838; see, also, Commonwealth Motor Parts v Bank of Nova Scotia, 44 AD2d 375). Similarly, the communication to *861the agency responsible for supervising plaintiff’s profession was also privileged. Since plaintiff has not met his burden of showing by evidentiary facts, rather than conclusions based upon surmise, conjecture and suspicion, that in making the statement defendant abused the privilege by acting with actual malice motivated by ill will, spite or hostility, defendant’s motion for summary judgment should have been granted (Shapiro v Health Ins. Plan of Greater N. Ysupra).