Opinion
March 11, 1993
Appeal from the Supreme Court, New York County (Karla Moskowitz, J.).
Where, as here, there is no dispute as to the facts, it is for the court, not the jury, to decide whether a qualified privilege exists (O'Neil v. Peekskill Faculty Assn., 120 A.D.2d 36, 42, lv dismissed 69 N.Y.2d 984), and we find that one does. As such, it is incumbent upon plaintiff to demonstrate malice (see, Liberman v. Gelstein, 80 N.Y.2d 429; Wright v. Johnson, 184 A.D.2d 234), mere conclusory assertions being insufficient for that purpose (supra; Roth v. Beth Israel Med. Ctr., 180 A.D.2d 434, 435). Contrary to the dictum in the IAS Court's decision, a triable issue of fact exists as to whether defendant's statements were "`so extravagant in [their] denunciations or so vituperative in [their] character as to justify an inference of malice'" (Misek-Falkoff v. Keller, 153 A.D.2d 841, 842, quoting Ashcroft v Hammond, 197 N.Y. 488, 496). Thus, whether defendant's statements exceeded the scope of her qualified privilege is a matter for the jury.
We have considered the parties' other points, including the denial of plaintiff's cross motion for sanctions, and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Rosenberger and Kupferman, JJ.