Sanderson v. Bellevue Maternity Hospital, Inc.

Appeal from that part of an order of the Supreme Court (Keegan, J.), entered August 18, 1998 in Albany County, which partially granted defendants’ motion for summary judgment dismissing the complaint.

Plaintiff was an employee at-will of defendant Bellevue Maternity Hospital, Inc. from 1982 until January 1996. On January 19, 1996 plaintiff was removed by her supervisor, defendant Susan Fraley, from her position as Administrative Patient Care Coordinator. The removal was based upon the allegation of plaintiff’s subordinate co-worker (hereinafter the coworker) that plaintiff had harassed her by repeatedly questioning her regarding an alleged relationship the co-worker had with a Bellevue staff physician. Fraley prepared and provided plaintiff with a “Disciplinary Warning Notice and Action Taken” form (hereinafter the Discipline-Action Notice) detailing the co-worker’s claim of verbal harassment. Plaintiff declined Fraley’s offer of a staff nurse position and ceased to be employed by Bellevue.

Plaintiff commenced this action alleging against the coworker (1) a cause of action for defamation based upon the co

Supreme Court denied the co-worker’s motion for summary judgment dismissing plaintiffs two causes of action against her, finding questions of fact regarding whether the co-worker’s statements were made with awareness of their falsity and thus not entitled to the qualified privilege she asserted, and whether the co-worker’s statements constituted fraudulent representations. The co-worker has not appealed. Supreme Court, however, granted defendants’ motion to dismiss the defamation cause of action, determining that Fraley’s statements were protected by the qualified privilege which plaintiff failed to overcome by proof of actual malice by either Fraley or Bellevue. The court also dismissed plaintiffs wrongful discharge claim asserted against Bellevue, finding that plaintiff failed to overcome the presumption of at-will employment. Plaintiff now appeals the dismissal of her causes of action against defendants, although she does not raise any issues directed to the dismissal of her wrongful discharge claim against Bellevue.

We affirm. We reject plaintiffs contention that Supreme Court erred in concluding as a matter of law that Fraley’s statements concerning plaintiff were protected by a qualified privilege which she failed to overcome with proof of actual malice. Under the principle that “the flow of information between persons sharing a common interest should not be impeded” (Liberman v Gelstein, 80 NY2d 429 , 437), a qualified “common interest” privilege arises “when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest” (Grier v Johnson, 232 AD2d 846 , 847; see, Liberman v Gelstein, supra, at 437 ; Stillman v Ford, 22 NY2d 48 , 53; see also, Paskiewicz v National Assn. for Advancement of Colored People, 216 AD2d 550 , 551, lv denied 87 NY2d 807 ). Qualified privilege has been applied to statements among

“In order to overcome the qualified privilege, a plaintiff must demonstrate by tender of proof in evidentiary form that a defendant acted with malice” (Grier v Johnson, supra, at 848 ). To démonstrate what has become known as constitutional malice, plaintiff must show that Fraley acted with knowledge that her statements were false or with reckless disregard of whether they were false, i.e., that the statements were made with a “ ‘high degree of awareness of their probable falsity’ ” (Liberman v Gelstein, supra, at 438 , quoting Garrison v Louisiana, 379 US 64 , 74; see, Grier v Johnson, supra, at 848 ) or that Fraley entertained serious doubts as to their truth (see, Sweeney v Prisoners’ Legal Servs., 84 NY2d 786 , 793). Common-law malice, which will also defeat a qualified privilege, requires proof that the speaker was motivated solely by spite or ill will (see, Grier v Johnson, supra, at 848 ; see also, Liberman v Gelstein, supra, at 437-438 ).

In support of her claim that a question of fact exists as to whether Fraley acted with reckless disregard for the truth or falsity of her statements concerning plaintiff, plaintiff points to Fraley’s failure to verify or investigate the truth of her remarks and refusal to listen to plaintiff’s explanation, arguing that she “purposefully avoided” the truth (see, Sweeney v Prisoners’ Legal Servs., supra, at 793 ). However, “the failure to investigate its truth, standing alone, is not enough to prove actual malice even if a prudent person would have investigated before publishing the statement” (id., at 793; see, Grier v Johnson, supra, at 849 ), unless it evinces a deliberate intent to avoid the truth (see, Sweeney v Prisoners’ Legal Servs., supra, at 793 ).

Upon our review of the record, we agree with the conclusion reached by Supreme Court that there was insufficient evidence tendered to demonstrate either that defendants knew that the relevant statements were false, that defendants had a high degree of awareness of their probable falsity, or that they entertained serious — or any — doubts as to their truth so as to warrant submission of the issue of malice to a jury and defeat defendants’ summary judgment motion (see, id., at 792-793 ; Liberman v Gelstein, supra, at 438-439 ). Indeed, Fraley testified that she believed the accusations to be true and based the dismissal decision on the co-worker’s perception of harassment by plaintiff, who was her supervisor. While Fraley may have made the statements in the Discipline-Action Notice without

Thus, Fraley demonstrated that her statements repeating the co-worker’s complaints communicated by her in her capacity as an employee, i.e., the Director of Patient Services, “about legitimate issues related to [ ] hospital business”, as Supreme Court aptly concluded, are afforded the protection of a qualified privilege (see, Grier v Johnson, supra, at 847-848 ; see also, Roberts v Oellrich & Behling, supra, at 860 ) which plaintiff failed to overcome by submitting evidence to sustain her conclusory and speculative allegations of constitutional or common-law malice (see, Grier v Johnson, supra, at 849 ; see also, Roberts v Oellrich & Behling, supra, at 860-861 ; Rabideau v Albany Med. Ctr. Hosp., supra, at 925 ). Thus, plaintiffs defamation claim against Fraley was properly dismissed.

Plaintiff next contends that dismissal of her claim against Bellevue for compensatory and punitive damages for defamation, premised upon Fraley’s conduct within the scope of her employment and as plaintiffs supervisor in making defamatory statements and ratifying the co-worker’s accusations against plaintiff, was improper. In so arguing, plaintiff proceeds on the theory of Bellevue’s vicarious liability as employer for the alleged defamatory statements of its supervisor, Fraley, who in her employ adopted and ratified the accusations of an employee as her own and on behalf of Bellevue (see, Loughry v Lincoln First Bank, supra, at 378 ). The doctrine of respondeat

Further, plaintiffs arguments addressed to the issue of Bellevue’s vicarious liability for the defamatory statements of the co-worker are not properly before this Court as plaintiff failed to plead this tort theory in her complaint, thus waiving it (see, Howe v Village of Trumansburg, 199 AD2d 749 , 752, lv denied 83 NY2d 753 ). The only theory of vicarious liability alleged in the complaint against Bellevue is contained in paragraph 61 of the complaint and is premised upon Fraley’s actions and statements. The sole reference to the co-worker’s alleged defamatory statements in the two causes of action asserted against Bellevue and Fraley is contained in paragraph 61 of the complaint. That paragraph alleges only Fraley’s own direct liability for defamation based upon her adoption and ratification of the coworker’s alleged defamatory statements. Even liberally construing the pleadings (see, CPLR 3026), we conclude that plaintiff failed to state any cause of action against Bellevue under the doctrine of respondeat superior for the co-worker’s alleged defamatory statements. Thus, Supreme Court did not err in failing to address this claim or in dismissing plaintiffs defamation cause of action against Bellevue and Fraley in its entirety.

Finally, plaintiffs failure to address the dismissal of her wrongful discharge claim against Bellevue in her appellate brief constitutes an abandonment of that issue (see, Transamerica Commercial Fin. Corp. v Matthews of Scotia, 178 AD2d 691 , 692, n 1). In any event, we conclude that Supreme Court

Mercure, J. P., Crew III, Peters and Carpinello, JJ., concur. Ordered that the order is affirmed, with costs.