Opinion
October 27, 1970
Order, Supreme Court, New York County, entered on June 24, 1970, denying defendants' motion for summary judgment, unanimously reversed on the law, the motion granted, and the complaint dismissed. Appellants shall recover of respondent $50 costs and disbursements of this appeal. The complaint is based upon two letters from defendants, plaintiff's former employer, to the surety on a fidelity bond covering the plaintiff. The letters, which accused plaintiff of embezzling and pilfering funds from the defendant corporation, were obviously written in support of the claim made under the fidelity bond, based on misappropriation of funds by the plaintiff. It further appears that these letters were sent on instructions from the surety and were required by the terms of the fidelity bond, in order to support the claim. These letters were qualifiedly privileged. ( Bingham v. Gaynor, 203 N.Y. 27; Cheatum v. Wehle, 5 N.Y.2d 585, 599.) In the case of Bingham v. Gaynor, ( supra, pp. 30-31) the court said: "A person on an occasion that rebuts any presumption of express malice may publish statements, although defamatory of the person referred to in the communication, if he does so in the performance of a legal or moral duty and in good faith believing that such statements so made by him are true, without being liable for damages arising from such publication. * * * Such privilege is known as a qualified privilege. It is qualified because it does not extend beyond such statements as the writer makes in the performance of such duty and in good faith believing them to be true." Since we conclude that the defense of qualified privilege is applicable, it is incumbent upon plaintiff to establish the existence of actual malice by evidentiary facts, as opposed to mere conclusory statements. ( Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 64.) Plaintiff has failed to satisfy this requirement. (See Kremer Constr. Co. v. Garfinkel, 31 A.D.2d 766.)
Concur — Eager, J.P., Capozzoli, Markewich and Tilzer, JJ.