"To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" ( Rodriguez v. Daily News, L.P., 142 A.D.3d 1062, 1063, 37 N.Y.S.3d 613 ; see El Jamal v. Weil, 116 A.D.3d 732, 733, 986 N.Y.S.2d 146 ). "A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege" ( Stillman v. Ford, 22 N.Y.2d 48, 53, 290 N.Y.S.2d 893, 238 N.E.2d 304 ; see Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 ; Colantonio v. Mercy Med. Ctr., 115 A.D.3d 902, 903, 982 N.Y.S.2d 563 ). However, this "common-interest privilege" may be overcome by a showing of malice ( Colantonio v. Mercy Med. Ctr., 115 A.D.3d at 903, 982 N.Y.S.2d 563 ; see Kamchi v. Weissman, 125 A.D.3d 142, 158, 1 N.Y.S.3d 169 ).

"This qualified privilege has been applied to communications carried out ‘in furtherance of a common interest of a religious organization’ " ( Kamchi v. Weissman, 125 A.D.3d at 158, 1 N.Y.S.3d 169, quoting Berger v. Temple Beth–El of Great Neck, 41 A.D.3d 626, 627, 839 N.Y.S.2d 504 ). However, "the common-interest privilege can be overcome by a showing of malice" ( Colantonio v. Mercy Med. Ctr., 115 A.D.3d 902, 903, 982 N.Y.S.2d 563 ; seeLiberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 ). "To establish the malice necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will, or may show actual malice, i.e., knowledge of falsehood of the statement or reckless disregard for the truth" ( Diorio v. Ossining Union Free School Dist., 96 A.D.3d 710, 712, 946 N.Y.S.2d 195 [internal quotation marks omitted]; seeKamchi v. Weissman, 125 A.D.3d at 158, 1 N.Y.S.3d 169 ).

Defendants contend that plaintiffs have made only conclusory allegations of malice which are unsupported by specific facts. However, "[s]ince . . . the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211 (a) (7), a plaintiff has 'no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7)'" (Sokol v Leader, 74 AD3d 1180, 1182 [2d Dept 2010], quoting Kotowski vHadley, 38 AD3d 499, 500 [2d Dept 2007]; see also Kamchi, 125 AD3d at 159; Colantonio v Mercy Med. Ctr., 115 AD3d 902, 903 [2d Dept 2014]; Weiss vLowenberg, 95 AD3d 405, 406 [1st Dept 2012]; Shaw vClub Mgrs. Assn. of Am., Inc., 84 AD3d 928, 931 [2d Dept 2011]; Pezhman vCity of New York, 29 AD3d 164, 169 [1st Dept 2006]; Arts4All, Ltd. vHancock, 5 AD3d 106, 109 [1st Dept 2004]; Terry v County of Orleans, 72 AD2d 925, 927 [4th Dept 1979]; Mellen v Athens Hotel Co., 153 App Div 891, 891 [1st Dept 1912]). Furthermore, affidavits and other documentary evidence submitted in opposition to the motion "may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello vOrofino Realty Co., 40 NY2d 633, 635-636 [1976]).

Since "the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has ‘no obligation to show evidentiary facts to support [his or her] allegations of malice on [such] a motion’ " ( Sokol v. Leader, 74 A.D.3d 1180, 1182, 904 N.Y.S.2d 153, quoting Kotowski v. Hadley, 38 A.D.3d 499, 500, 833 N.Y.S.2d 103 ). Here, to the extent that the defendants' statements may be shielded by any qualified privileges, the allegations of malice that were set forth in the complaint and in an affidavit submitted by Oberman preclude dismissal of the complaint insofar as asserted against the defendants for failure to state a cause of action (see CPLR 3211[a][7] ; Kamchi v. Weissman, 125 A.D.3d 142, 158–159, 1 N.Y.S.3d 169 ; Colantonio v. Mercy Med. Ctr., 115 A.D.3d 902, 902–903, 982 N.Y.S.2d 563 ; Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153 ; Kotowski v. Hadley, 38 A.D.3d at 500, 833 N.Y.S.2d 103 ).

In this context, however, if the "documentary evidence" is submitted specifically to establish the truth of its contents, it must be of such nature and reliability as to be "essentially undeniable" ( Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569 ), and must "utterly refute" ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ) the plaintiff's factual allegation that the allegedly defamatory statement is false. This is an exacting standard, which is not easily met at the pre-answer stage (see e.g. Colantonio v. Mercy Med. Ctr., 115 A.D.3d 902, 903–904, 982 N.Y.S.2d 563 ; Matovcik v. Times Beacon Record Newspapers, 46 A.D.3d 636, 638, 849 N.Y.S.2d 75 ). Guided by the above principles, we now turn to the merits of Spitzer's motion to dismiss.

The amended complaint states that the July 23 letter, the contents of which were repeated by defendants at the September 11, 2019 meeting, "had no purpose other than to maliciously punish and defame Plaintiffs" and that it was sent "with the sole intent to cause reputational harm and emotional distress to the plaintiffs, by bringing the matter to a place of profound spiritual importance to them, where they had enjoyed an excellent reputation and positions of authority for many years" (Amended Complaint at ¶ ¶ 69,72). At this juncture, these allegations are sufficient to overcome the common interest privilege (see Colantonio v Mercy Med. Ctr., 115 A.D.3d 902, 903 [2d Dept 2014] ["a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7)"] [internal quotation marks and citations omitted]).

One such conditional, or qualified, privilege extends to a "communication made by one person to another upon a subject in which both have an interest" (Stillman v Ford, 22 N.Y.2d 48, 53 [1968]; see Liberman v Gelstein, 80 N.Y.2d 429, 437 [1992]; Colantonio v Mercy Med. Ctr., 115 A.D.3d 902, 903 [2d 2014]).

As the Defendant correctly points out, at the pleading stage of the litigation, Defendant has "no obligation to show evidentiary facts to support his or her allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)." Colantonio v. Mercy Medical Center 115 A.D.3d 902, 903 (2d Dep't 2014) citingSokol v. Leader, 74 A.D. 3d 1180, 1182 (2d Dep't 2010); Demas v. Levitsky, 291 A.D. 653 (3d Dep't 2002). Therefore, Defendant's allegations set forth in her opposition to Plaintiff's motion, which reveal a toxic relationship between the two fraught with allegations of physical and verbal abuse, in which Defendant alleges Plaintiff threatened on multiple occasions to "destroy [her] medical career", at this early stage in the proceedings, are sufficient to defeat Plaintiff's motion to dismiss.

In turn, defamation per se requires that the offending statement meets at least one of the following criteria: "when it charges another with a serious crime or tends to injure another in his or her trade, business, or profession" ( Konig v. CSC Holdings, LLC , 112 AD3d 934, 935, 977 N.Y.S.2d 756, 758 [2nd Dept. 2013] quoting Geraci v. Probst , 61 AD3d 717, 718, 877 N.Y.S.2d 386 [2nd Dept.2009] ; aff'd as modified 15 NY3d 336 [2010] ) "A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege" ( Stillman v. Ford , 22 NY2d 48, 53, 290 N.Y.S.2d 893, 238 N.E.2d 304 [1968] ; seeLiberman v. Gelstein , 80 NY2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] ; Colantonio v. Mercy Med. Ctr. , 115 AD3d 902, 903, 982 N.Y.S.2d 563 [2nd Dept.2014] ). This "common-interest privilege," however, may be overcome by a showing of malice (Colantonio v. Mercy Med. Ctr. , supra at 903; seeKamchi v. Weissman , 125 AD3d 142, 158, 1 N.Y.S.3d 169 [2nd Dept.2014] ).

A pre-answer motion to dismiss the complaint based on its failure to state a claim is not a vehicle to determine whether a privilege defeats the claim. Fletcher v. Dakota, Inc., 99 A.D.3d 43, 55-56 (1st Dep't 2012); Weiss v. Lowenberg, 95 A.D.3d 405, 406 (1st Dep't 2012); Colantonio v. Mercy Med. Ctr., 115 A.D.3d 902, 903 (2d Dep't 2014). While a motion to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(1) may defeat a defamation claim based on documentary evidence that conclusively establishes a privilege, L.Y.E. Diamonds, Ltd. v. Gemological Inst. of Am., Inc.. 169 A.D.3d 589, 589 (1st Dep't 2019), defendant did not select that vehicle.