Opinion
February 21, 1991
Appeal from the Supreme Court, Bronx County (Anita Florio, J.).
It was error for IAS to convert defendants' motion to dismiss the first cause of action for defamation (CPLR 3211 [a] [7]) into one for summary judgment under CPLR 3212 without any notice to the parties (Four Seasons Hotels v Vinnik, 127 A.D.2d 310). Such a course was particularly prejudicial to plaintiff who was deprived of any opportunity to submit a competent affidavit in support of the general allegations of malice in the pleading which were facially sufficient at this stage (Whelehan v Yazback, 84 A.D.2d 673, 674).
It was also error to give conclusive effect to defendants' position of qualified privilege before any affirmative defense to that effect was raised in a responsive pleading (Whelehan v Yazback, supra). It may be noted that a qualified privilege defense usually presents a jury question as to whether defendants' conduct was cloaked with, or transcended, the protective mantle of the privilege (Schulman v Anderson Russell Kill Olick, 117 Misc.2d 162, 169).
The second cause of action making exclusive reference to punitive damages was properly dismissed (Kallman v Wolf Corp., 25 A.D.2d 506).
Concur — Rosenberger, J.P., Wallach, Asch, Kassal and Smith, JJ.