Opinion
June 7, 1991
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Balio, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Plaintiffs, a construction company and its president, sued defendants, the Monroe County Water Authority (Authority) and John Maume, its manager of design and construction, based on memoranda Maume wrote in connection with plaintiffs' past performance on various Authority projects. Plaintiffs alleged that the memoranda and attachments contained false and defamatory statements and resulted in the Authority awarding two contracts to other contractors even though plaintiffs had submitted lower bids. Plaintiffs also alleged that defendants deprived them of their due process and equal protection rights under 42 U.S.C. § 1983.
Supreme Court properly denied defendants' motion for summary judgment seeking dismissal of plaintiffs' section 1983 claim. Plaintiffs alleged that defendants discriminated against them by failing to apply the same or similar standards to all contractors in determining the lowest responsible bidder on public works contracts. Defendants' motion papers fail to establish that plaintiffs' equal protection claim lacks merit as a matter of law (see, Three Rivs. Cablevision v City of Pittsburgh, 502 F. Supp. 1118, 1133).
Supreme Court also properly denied defendants' motion for summary judgment seeking dismissal of plaintiffs' punitive damages claims. There is a question of fact whether the Authority is a public benefit corporation entitled to an exemption from such damages (see, Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 N.Y.2d 382, 386-387). Defendant Maume may also be liable for punitive damages for torts committed within the scope of his employment (see, Sharapata v Town of Islip, 56 N.Y.2d 332, 338).
Supreme Court erred, however, in denying defendants' motion for summary judgment seeking dismissal of plaintiffs' defamation cause of action. The alleged defamatory statements were privileged because they were made by Maume in the discharge of his public duty (see, Toker v Pollak, 44 N.Y.2d 211, 219) to the Authority, which itself was privileged under the circumstances (see, Stukuls v State of New York, 42 N.Y.2d 272, 277-279). Moreover, plaintiffs have failed to establish that the statements were made with actual malice (see, Clark v Somers, 162 A.D.2d 982, 983). The existence of earlier disputes between the parties is insufficient (see, Shapiro v Health Ins. Plan, 7 N.Y.2d 56, 64; Friedman v Ergin, 110 A.D.2d 620, 621, affd 66 N.Y.2d 645).
We have considered the remaining contentions raised by each party and find them lacking in merit.