Summary
holding that allegedly defamatory statements made by employer regarding employee's work performance constituted opinions and thus were not actionable
Summary of this case from Hupp v. SasserOpinion
February 4, 1994
Appeal from the Supreme Court, Chautauqua County, Gerace, J.
Present — Denman, P.J., Callahan, Balio, Fallon and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Plaintiff concedes that there is no cause of action in New York for wrongful discharge of an at-will employee (see, Murphy v American Home Prods. Corp., 58 N.Y.2d 293). Plaintiff contends, however, that his termination falls within one of the exceptions to the rule enunciated in Murphy. We disagree. The statement of defendant Dart to plaintiff that plaintiff's job "was not in jeopardy" does not constitute an express agreement limiting or restricting the employer's right of discharge (see, Struwe v Chapin Mfg. Works, 161 A.D.2d 1179, lv denied 76 N.Y.2d 709; Hill v. Westchester Aeronautical Corp., 112 A.D.2d 977). Plaintiff's reliance upon Weiner v. McGraw-Hill, Inc. ( 57 N.Y.2d 458) is misplaced. There, a representation in an employee handbook that plaintiff would be dismissed "for just and sufficient cause only" constituted an express agreement between the parties. Plaintiff is unable to point to any such agreement in this case.
The alleged defamatory statements made by defendant Dart fall within the rule that statements made by an employer regarding an employee's work performance are opinion and thus are not actionable (see, Miller v. Richman, 184 A.D.2d 191; Williams v Varig Brazilian Airlines, 169 A.D.2d 434, lv denied 78 N.Y.2d 854). Plaintiff contends that the statements are not expressions of opinion, but defamed him in his business or trade, is not supported by the record. Even if we were to conclude that the statements are not expressions of opinion, we would conclude that they are protected by a qualified privilege as communications "made by one person to another upon a subject in which both have an interest" (Stillman v Ford, 22 N.Y.2d 48, 53; see, Williams v. Varig Brazilian Airlines, supra, at 438). In the absence of any proof of malice, statements protected by a qualified privilege are not actionable (see, Klein v. Prial, 32 A.D.2d 925, affd 28 N.Y.2d 506). Plaintiff has shown no evidence of malice and none can be presumed (see, Shapiro v. Health Ins. Plan, 7 N.Y.2d 56). Plaintiff's causes of action for defamation therefore were properly dismissed.