Opinion
December 30, 1992
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Callahan, J.P., Pine, Lawton, Boehm and Davis, JJ.
Order insofar as appealed from unanimously reversed on the law without costs and motion denied. Memorandum: The court should have denied defendant's motion seeking partial summary judgment dismissing plaintiffs' defamation action on the ground that defendant's reply to the Consumer Fraud Bureau of the State Attorney-General's Office was subject to an absolute privilege. We conclude that communications made to the Attorney-General's Office enjoy a qualified rather than an absolute privilege. The Attorney-General does not act in a judicial or quasi-judicial capacity because, although he investigates allegedly fraudulent or illegal acts, he must seek enforcement in court (see, Executive Law § 63; Toker v Pollak, 44 N.Y.2d 211, 222; Grossman v Fieland, 107 A.D.2d 659; cf., Mancini v Marine Midland Bank, 185 A.D.2d 682, lv denied 80 N.Y.2d 760; Herzfeld Stern v Beck, 175 A.D.2d 689, lv dismissed 79 N.Y.2d 914; Missick v Big V Supermarkets, 115 A.D.2d 808, appeal dismissed 67 N.Y.2d 938; Stilsing Elec. v Joyce, 113 A.D.2d 353). We do not consider defendant's argument that it is entitled to summary judgment on the issue of qualified privilege because it was not raised at Supreme Court.