Opinion
January 31, 1994
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, the order is vacated, the defendants' motion to dismiss the complaint is granted, the plaintiff's motion to conform the pleadings to the proof is denied, and the complaint is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as cross-appealed from; and it is further,
Ordered that the appellant-respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).
The plaintiff commenced this action, inter alia, to recover damages for legal malpractice, alleging in relevant part that the defendants were liable for their failure to commence a lawsuit against the University of Vermont and its officials for publishing allegedly defamatory statements about him. However, in order to hold the defendants liable the plaintiff must establish that he would have prevailed in the underlying action if the defendants had exercised reasonable care (see, Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy Levine, 45 N.Y.2d 730; Flinn v. Aab, 167 A.D.2d 507; Mahoney v. Manfredi, 166 A.D.2d 557; Parksville Mobile Modular v. Fabricant, 73 A.D.2d 595).
The plaintiff's underlying lawsuit is premised on three letters written by certain officials of the University of Vermont College of Medicine to the plaintiff's prospective employers with respect to a residency in surgery which the plaintiff had undergone at that institution between July 1960 and June 1961. The letters stated, in pertinent part, that the plaintiff's certificate of residency had been revoked following his departure from that institution on the ground that evidence had been uncovered to strongly suggest that the plaintiff had "attempted to lose or destroy hospital records assigned to him for completion". Three hospitals to which the defendant had applied for employment rejected him after seeking and receiving these letters.
The parties concede, and we agree, that the defendants' statements are qualifiedly privileged. The shield provided by a qualified privilege may be dissolved, however, if a plaintiff can demonstrate that a defendant made the statements with "malice", i.e., with spite or ill-will, or with knowledge of their falsity, or in reckless disregard of their truth or falsity (see, Liberman v. Gelstein, 80 N.Y.2d 429, 437-438; Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 376; Park Knoll Assocs. v. Schmidt, 59 N.Y.2d 205, 211; O'Rorke v. Carpenter, 55 N.Y.2d 798, 798-799). In addition to proving malice the plaintiff bears the burden of establishing the falsity of the statements (see, Rinaldi v. Holt, Rinehart Winston, 42 N.Y.2d 369, 380, cert denied 434 U.S. 969; Brady v. Ottaway Newspapers, 84 A.D.2d 226, 242-243).
We find that the plaintiff failed to meet his burden of proving the falsity of the accusations of impropriety. By his own evidence-in-chief, the plaintiff produced allegations that 29 incomplete medical records which had been assigned to him had been found in a lake in Vermont by State police and that four days before his residency was to end the medical records librarian reported that the plaintiff still had 23 records to complete. At trial the plaintiff merely denied these accusations. These general denials of wrongdoing without evidentiary facts to support the plaintiff's position are insufficient, as a matter of law, to establish that the accusations are false (see, Rinaldi v Holt, Rinehart Winston, supra, at 382).
We disagree with the plaintiff's contention that the court erred when it denied his motion to conform the pleadings to the proof to add a cause of action sounding in fraud. Although leave to amend the pleadings should be freely given absent prejudice or surprise resulting directly from the delay (see, CPLR 3025 [c]; Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23; Murray v. City of New York, 43 N.Y.2d 400, 405), leave to amend should not be granted where a new or alternate theory is plainly lacking in merit (see, Sanford v. Sanford, 176 A.D.2d 932, 933). Here, the plaintiff failed to plead detrimental reliance, an essential element of a fraud cause of action (see, LaBrake v. Enzien, 167 A.D.2d 709, 711; Chiarello v. Harold Sylvan, P.C., 161 A.D.2d 948, 950; cf., Green v. Leibowitz, 118 A.D.2d 756, 758). Sullivan, J.P., Rosenblatt, Pizzuto and Joy, JJ., concur.