Missick v. Big V Supermarkets, Inc.

Levine, J.,

concurs in part and dissents in part in the following memorandum. Levine, J. (concurring in part and dissenting in part). The moving and opposing affidavits of the parties set forth facts from which a jury could find that defendant Kevin Wippich, the security receiver at the Colonie store of defendant Big V Supermarkets, Inc. (Big V) who accepted plaintiff’s delivery on December 19, 1979, thereafter *812reported that there were two errors in the first invoice plaintiff submitted: (1) a quantity discrepancy in which a "1” had been placed in front of a quantity of 45 units delivered; and (2) a price discrepancy in which the invoice charged $70 more than the actual price of another item. Wippich could also be found to have reported that plaintiff attempted to correct the error in quantity on the first invoice, but smudged it so badly that he took it back to replace it with a second invoice. When the latter invoice was presented, according to Wippich, he noticed that the $70 pricing error had been transferred to another item. Upon pointing this out to plaintiff, the second invoice was discarded into the store’s compactor and then plaintiff prepared and submitted a third invoice which was correct. There was also evidence that the foregoing facts, i.e., that there was an aggregate of three separate misbillings by plaintiff and a total of three invoices presented, were reported by Wippich to defendant John Twardowski, assistant manager of Big V’s Colonie store, who, in turn, passed the report further up the Big V chain of command, along with Wippich’s conclusion that the three errors demonstrated that plaintiff had deliberately falsified his billings. These facts and conclusions were then communicated to plaintiff’s employer, resulting in his termination. Subsequently, in connection with the preparation of Big V’s defense of plaintiff’s complaint to the State Division of Human Rights, Twardowski submitted a written statement in which, in substance, he asserted that he examined the second of the three invoices allegedly submitted by plaintiff and had confirmed the price overcharge contained therein as reported by Wippich.

Plaintiff’s affidavit in opposition flatly denies that any discrepancy in invoices existed other than the addition of the "1” in front of the 45 units of one item of merchandise delivered, which he denied responsibility for. Plaintiff also avers that this error was corrected in the second and final invoice he presented that day. It should be noted that the second of the three invoices claimed in Wippich’s report to have been delivered by plaintiff has never been produced and that Wippich has never verified that this invoice was ever shown by him to Twardowski.

On the basis of the foregoing evidence, I am of the view that plaintiff’s causes of action against Wippich and Twardowski based upon their initial reports of his billing falsifications, and the causes of action against Big V for the same reports by those employees, should not have been dismissed. Admittedly, the reports were covered by a qualified privilege, as the *813majority has held. However, the defense of qualified privilege in a defamation action is defeated by proof of malice, that is, that the defamatory statement was known to be false when made (O’Rorke v Carpenter, 55 NY2d 798, 799), or was made with reckless disregard as to its truth (Restatement [Second] of Torts § 600 [b] [1977]), or the maker lacked probable cause for believing it to be true (Mercedes-Benz v Finberg, 58 AD2d 808, 809). The versions of plaintiff and of Wippich regarding the events surrounding the delivery and alteration of invoices on December 19, 1979 are diametrically opposed to each other. As previously described, Wippich claimed that there was an aggregate of three discrepancies on the first two invoices plaintiff submitted, which were not corrected until a third invoice was submitted. Plaintiff has sworn that only one discrepancy ever existed in the first invoice, which was corrected by a fully accurate second and final invoice. Moreover, Wippich’s accusation of plaintiff’s deliberate falsification of billings was entirely based on the existence of several discrepancies which plaintiff only corrected after Wippich pointed them out. Since plaintiff and Wippich were the two direct participants in the transaction, a jury accepting plaintiff’s version could readily infer that Wippich knowingly and falsely reported his version of the facts to Twardowski, along with his conclusion that those facts demonstrated plaintiff’s intentional wrongdoing.

Regarding the malice of Twardowski in repeating Wippich’s report of the factual events and his accusation of plaintiff’s deliberate falsification, a jury could attach significance to the later statement of Twardowski in which he implied that he had confirmed Wippich’s report by examining the second of the alleged three invoices. Although the latter statement itself was absolutely privileged because of its relationship to the then-pending proceeding before the State Division of Human Rights, a jury could clearly draw inferences from it concerning Twardowski’s conduct and state of mind in initially passing on the facts and conclusions of Wippich’s report and, based thereon, find that Twardowski thereby acted recklessly. Under settled authority, Big V could be held liable vicariously for defamatory statements made by its employees Wippich and Twardowski (Karaduman v Newsday, Inc., 51 NY2d 531, 547; Kennedy v James Butler, Inc., 245 NY 204, 206-207).

Accordingly, I would modify the order by reversing so much thereof as dismissed plaintiff’s causes of action against Wippich and Twardowski and the derivately based causes of action against Big V.