Opinion
February 26, 1968
In consolidated appeals, plaintiff in Action No. 1 appeals from an order of the Supreme Court, Queens County, dated June 12, 1967, which denied its motion for partial summary judgment; and defendant Robert W. Williams in Action No. 2 appeals from so much of an order of the same court dated August 21, 1967 as, upon resettlement of a prior order, denied a motion, insofar as made by him, for summary judgment dismissing the complaint. Order in Action No. 1 affirmed and order in Action No. 2 affirmed insofar as appealed from, with $10 costs and disbursements in each appeal. No opinion. Christ, Rabin and Munder, JJ., concur; Beldock, P.J., concurs in result, although he adheres to the views stated in the dissent in Williams v. Williams ( 27 A.D.2d 550).
I am constrained under the authority of Williams v. Williams ( 27 A.D.2d 550) to sustain the validity of the complaint, though I adhere to the views stated in the dissent therein. In addition, I am of the opinion that actual malice (as distinguished from implied malice) was not sufficiently shown to justify a submission of that issue to the jury (cf. Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 64; Sheridan v. Crisona, 14 N.Y.2d 108, 114; Gilberg v. Goffi, 21 A.D.2d 517, affd. 15 N.Y.2d 1023). Appellant Robert W. Williams, at the least, had a qualified privilege to transmit a copy of the complaint in Action No. 1 to persons with whom the plaintiff in that action dealt; and falsity alone would not render him liable ( Loewinthan v. Le Vine, 299 N.Y. 372, 375). I see no evidence here of "`personal spite or ill will, or culpable recklessness or negligence'", which are the indicia of actual malice ( Hoeppner v. Dunkirk Print. Co., 254 N.Y. 95, 106).