In addition to qualified privilege, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, are generally accorded an absolute privilege, as long as the statements may be considered in some way "pertinent"" to the issues in the proceeding (see Martirano v Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425 [1969]; Front, Inc. v Khalil, 24 NY3d 713, 718, 4 N.Y.S.3d 581 [2015]; Segall v Sanders, 129 A.D.3d 819, 820, 11 N.Y.S.3d 235 [2d Dept 2015]). The privilege applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made (see Park Knoll Assoc. v Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424 [1983]).
The defendants further demonstrated that the challenged statements set forth in the "Shareholders In Arrears" flyers posted in the building lobby, which listed the apartment numbers of shareholders who allegedly owed arrears and the amount of those arrears, were protected by the qualified common-interest privilege (see Liberman v Gelstein, 80 NY2d 429, 437; Ferguson v Sherman Sq. Realty Corp., 30 AD3d 288; Bogoni v Simpson, 306 AD2d 125, 126). Although a qualified privilege may be lost by proof that the defendant acted out of malice (see Park Knoll Assoc. v Schmidt, 59 NY2d 205, 209; Segall v Sanders, 129 AD3d 819, 820), in opposition to the defendants' motion, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements in the flyers were motivated solely by malice (see Liberman v Gelstein, 80 NY2d at 439; Segall v Sanders, 129 AD3d at 821; Broich v McGann, 92 AD3d 710, 711; Ferguson v Sherman Sq. Realty Corp., 30 AD3d at 288).
"The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se" (Bowen v Van Bramer, 205 A.D.3d 674, 674-675 [internal quotation marks omitted]). "Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action" (id. at 675 [internal quotation marks omitted]). "Accordingly, [a]n expression of pure opinion is not actionable..., no matter how vituperative or unreasonable it may be" (id. [internal quotation marks omitted]). "Mere rhetorical hyperbole is not actionable" (Segall v Sanders, 129 A.D.3d 819, 820 [internal quotation marks omitted]).
The defendant's quotations from separate proceedings against the plaintiffs fall within the absolute privilege afforded by Civil Rights Law § 74 (seeBurke v. Newburgh Enlarged City Sch. Dist., 195 A.D.3d at 676, 145 N.Y.S.3d 355 ). Some of the remaining comments constituted rhetorical hyperbole, some lacked a precise meaning, and some were not capable of being proven true or false (seeBoard of Mgrs. of Brightwater Towers Condominium v. Vitebsky, 207 A.D.3d at 695, 170 N.Y.S.3d 879 ; Board of Mgrs. of Brightwater Towers Condominium v. Shlivko, 186 A.D.3d 553, 554, 126 N.Y.S.3d 677 ; Segall v. Sanders, 129 A.D.3d 819, 820, 11 N.Y.S.3d 235 ). Given the context and tone of these statements, a reasonable reader would have concluded that they were reading opinions, rather than facts, about the plaintiffs
Under the circumstances of this case, the challenged statements were absolutely privileged as a matter of law and cannot be the basis for a defamation cause of action (seeWeinstock v. Sanders , 144 A.D.3d 1019, 1021, 42 N.Y.S.3d 205 ; Rufeh v. Schwartz , 50 A.D.3d 1002, 858 N.Y.S.2d 194 ). Moreover, the challenged statements were not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency" ( Howell v. New York Post Co. , 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [internal quotation marks omitted]; seeSegall v. Sanders , 129 A.D.3d 819, 821, 11 N.Y.S.3d 235 ; see alsoLeibowitz v. Bank Leumi Trust Co. of N.Y. , 152 A.D.2d 169, 548 N.Y.S.2d 513 ). Thus, the statements could not be a basis for an intentional infliction of emotional distress cause of action.
The plaintiff appeals. We agree with the Supreme Court's determination converting the defendants' motion to dismiss into a motion for summary judgment after providing the parties with the requisite notice of its intent to treat the motion as one for summary judgment and the opportunity to make supplemental submissions (see CPLR 3211[c] ; Segall v. Sanders, 129 A.D.3d 819, 820, 11 N.Y.S.3d 235 ; Cenzon–Decarlo v. Mount Sinai Hosp., 101 A.D.3d 924, 926, 957 N.Y.S.2d 256 ; Nassau Diagnostic Imaging & Radiation Oncology Assoc. v. Winthrop–Univ. Hosp., 197 A.D.2d 563, 563, 602 N.Y.S.2d 650 ).
The evidence in the record demonstrated that the letter, which does not reference the plaintiff by name, was written by Dimino at the request of the DOE, and that the defendants did not identify the plumbing company that installed the gas piping at the school. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements were motivated solely by malice (seeGalanova v. Safir, 138 A.D.3d at 687–688, 29 N.Y.S.3d 459 ; Colantonio v. Mercy Med. Ctr., 135 A.D.3d 686, 691, 24 N.Y.S.3d 653 ; Segall v. Sanders, 129 A.D.3d 819, 821, 11 N.Y.S.3d 235 ; Bayer v. City of New York, 60 A.D.3d at 714, 875 N.Y.S.2d 209 ; Phelan v. Huntington Tri–Vil. Little League, Inc., 57 A.D.3d at 505, 868 N.Y.S.2d 737)."
We similarly find that the sworn statement that Kory O'Hara provided to an investigator with the Department of Financial Services (statements 7 and 11) was also made in the performance of his public duties and, therefore, he is entitled to an absolute privilege (see Cosme v. Town of Islip, 63 N.Y.2d 908, 909, 483 N.Y.S.2d 205, 472 N.E.2d 1033 [1984] ; compare Clark v. McGee, 49 N.Y.2d at 620, 427 N.Y.S.2d 740, 404 N.E.2d 1283 ).Further, we agree with Supreme Court that Michael O'Hara is entitled to a qualified privilege in regard to his sworn statement to the Greene County Sheriff's office (statement 8), given that he and the investigator had a common interest in the subject of the investigation (see Toker v. Pollak, 44 N.Y.2d 211, 221, 405 N.Y.S.2d 1, 376 N.E.2d 163 [1978] ; Segall v. Sanders, 129 A.D.3d 819, 820–821, 11 N.Y.S.3d 235 [2015] ; Present v. Avon Prods., 253 A.D.2d 183, 188, 687 N.Y.S.2d 330 [1999], lv. dismissed 93 N.Y.2d 1032, 697 N.Y.S.2d 555, 719 N.E.2d 914 [1999] ). Once this qualified privilege attached, it was then incumbent upon plaintiffs to show that Michael O'Hara " ‘acted out of personal spite or ill will, with reckless disregard for the statement['s] truth or falsity, or with a high degree of belief that [the] statement[ ][was] probably false’ " (Cusimano v. United Health Servs. Hosps., Inc., 91 A.D.3d 1149, 1150, 937 N.Y.S.2d 413 [2012], lv. denied 19 N.Y.3d 801, 2012 WL 1500604 [2012], quoting Foster v. Churchill, 87 N.Y.2d 744, 752, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996] ; see Wilcox v. Newark Val. Cent. Sch. Dist., 107 A.D.3d 1127, 1133, 967 N.Y.S.2d 432 [2013] ). To the extent that plaintiffs contend that Michael O'Hara made a similar oral statement to an investigator with the Department of Financial Services, the same analysis applies.
Although the summons with notice states that Weinstock and Greenblatt obtained one of the mortgages by fraud, this statement is accorded an absolute privilege. Generally, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court are accorded an absolute privilege, as long as the statements may be considered in some way “pertinent” to the issue in the proceeding (Martirano v. Frost, 25 N.Y.2d 505, 507–508, 307 N.Y.S.2d 425, 255 N.E.2d 693 ; see Front, Inc. v. Khalil, 24 N.Y.3d 713, 718, 4 N.Y.S.3d 581, 28 N.E.3d 15 ; Segall v. Sanders, 129 A.D.3d 819, 820, 11 N.Y.S.3d 235 ; El Jamal v. Weil, 116 A.D.3d at 733–734, 986 N.Y.S.2d 146 ; Rabiea v. Stein, 69 A.D.3d 700, 700, 893 N.Y.S.2d 224 ). This privilege, or “immunity” (Toker v. Pollak, 44 N.Y.2d 211, 219, 405 N.Y.S.2d 1, 376 N.E.2d 163 ), applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made (see Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209, 464 N.Y.S.2d 424, 451 N.E.2d 182 ; Rabiea v. Stein, 69 A.D.3d at 700, 893 N.Y.S.2d 224 ).
The Supreme Court should have denied that branch of Zingaro's motion which was for summary judgment dismissing so much of the first cause of action in the complaint as alleged that she made defamatory statements to the IAB. In opposition to Zingaro's prima facie showing that the statements at issue were protected by a qualified privilege covering communications with the police (see Toker v Pollak, 44 NY2d 211, 220; Segall v Sanders, 129 AD3d 819, 820; Wilson v Erra, 94 AD3d 756, 757), the plaintiff raised a triable issue of fact as to whether the statements were made with malice (see Colantonio v Mercy Med. Ctr., 73 AD3d 966, 969; Wehling v Bayex, Inc., 248 AD2d 973, 973; O'Neil v Peekskill Faculty Assn., 120 AD2d 36, 43). Viewing the allegations in the light most favorable to the plaintiff (see Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117, 119), Zingaro's deposition testimony demonstrates that the alleged defamatory statements were made with an awareness of the falsity of those statements, and Zingaro's testimony that she did not make the statements attributed to her in the IAB reports raises questions of fact (see Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 260-261). Accordingly, the Supreme Court improperly granted that branch of Zingaro's motion which was for summary judgment dismissing so much of the first cause of action in the complaint as alleged that she made defamatory statements to the IAB.