Opinion
12-03-2015
Warren ATKINS, Plaintiff–Respondent, v. FLAT RATE MOVERS, LTD., Defendant–Appellant.
Clausen Miller P.C., New York (Kimbley A. Kearney of counsel), for appellant. Lynn, Gartner, Dunne & Covello, LLP, Mineola (Kenneth L. Gartner of counsel), for respondent.
Clausen Miller P.C., New York (Kimbley A. Kearney of counsel), for appellant.
Lynn, Gartner, Dunne & Covello, LLP, Mineola (Kenneth L. Gartner of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 13, 2014, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The alleged defamatory statements by defendant's employees are shielded by the common interest privilege, which covers statements made in the context of plaintiff's job, regarding his alleged job-related misconduct (see Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992]; Present v. Avon Prods., 253 A.D.2d 183, 187, 687 N.Y.S.2d 330 [1st Dept.1999], lv. dismissed 93 N.Y.2d 1032, 697 N.Y.S.2d 555, 719 N.E.2d 914 [1999] ). Any shortcomings in defendant's investigation here was insufficient to establish malice, to defeat the common interest privilege (see Bulow v. Women In Need, Inc., 89 A.D.3d 525, 526, 933 N.Y.S.2d 222 [1st Dept.2011] ). Moreover, the statements by plaintiff's foreman and a coworker, if defamatory, were not within the scope of their duties or in furtherance of defendant's business, and defendant is therefore not vicariously liable for them (see N.X. v. Cabrini Med. Ctr., 280 A.D.2d 34, 37, 719 N.Y.S.2d 60 [1st Dept.2001], mod. on other grounds 97 N.Y.2d 247, 739 N.Y.S.2d 348, 765 N.E.2d 844 [2002] ). Furthermore, any publication of the alleged defamatory statements to the Department of Labor were privileged (see Phillip v. Sterling Home Care, Inc., 103 A.D.3d 786, 787, 959 N.Y.S.2d 546 [2d Dept.2013], lv. denied 21 N.Y.3d 854, 2013 WL 1831653 [2013]; Seymour v. New York State Elec. & Gas Corp., 215 A.D.2d 971, 972–973, 627 N.Y.S.2d 466 [3d Dept.1995] ).
TOM, J.P., SWEENY, ANDRIAS, GISCHE, JJ., concur.