Opinion
February 2, 1995
Appeal from the Supreme Court, New York County (Carol Huff, J.).
In an action for slander in which plaintiff alleges that defendant, his former employer, falsely accused him of stealing merchandise, defendant's motion for summary judgment was properly denied, there being issues of fact pertaining to defendant's assertion of the common interest privilege, that is whether defendant had "a legal or moral duty to respond to inquiries", if any, that were made concerning the theft by the persons to whom defendant uttered the accusation (Norwood v. City of New York, 203 A.D.2d 147, 149, appeal dismissed 84 N.Y.2d 849). Also, whether defendant acted with actual malice, is an issue not amenable to summary judgment treatment (O'Neil v. Peekskill Faculty Assn., 120 A.D.2d 36, 43, lv dismissed 69 N.Y.2d 984), especially where, as here, plaintiff has not yet had an opportunity to conduct disclosure (Bigman v. Dime Sav. Bank, 144 A.D.2d 318, 320). We have considered defendant's remaining arguments and find them to be without merit.
Concur — Wallach, J.P., Rubin, Kupferman and Tom, JJ.