In this action for defamation, defendants move for summary judgment pursuant to CPLR 3212 dismissing the complaint, arguing that the communication that gave rise to the claim was protected by a “qualified privilege,” in this case, an interest common to the parties to the communication. The motion for summary judgment is GRANTED and complaint is dismissed. Defendants also moved for partial summary judgment on a counterclaim for unpaid tuition at the defendant’s school. That motion is GRANTED as well, and a hearing will be scheduled to determine damages. FACTS The following facts are undisputed.1 Defendant Lea Goldstein (“Lea”) is the principal of a school known as Derech Hatorah of Rochester (“DHR”). Plaintiff Mordechai Rennert (“Mordechai”) had children attending the school. On May 9, 2019, a disciplinary incident involving one of Mordechai’s children occurred during a bus ride from DHR to students’ homes at the end of a school day That same evening Mordechai telephoned Lea and claimed that the teacher, Rabbi Shulman, serving as the school bus monitor had broken his child’s arm. Lea later learned that Mordechai was telling members of the observant Jewish community and families whose children attended DHR, that Rabbi Shulman had broken his child’s arm. Lea spoke to other children who had been on the bus at the time of the incident, reviewed a videotape of the school bus ride with the Director of Transportation for the Brighton School District and with a New York State Trooper, observed the child whose arm had been allegedly broken playing outside at recess with other children, and concluded that the school bus monitor had never touched the child. “Concerned about the reputation of DHR, and particularly concerned about the allegation that DHR would continue to employ an abusive teacher,” Lea sent an email to parents of current or former DHR students. The letter reads as follows: Dear DHR Parents, It is difficult to write this letter, but due to recent circumstances, we must share some information with you. Sadly, an individual in our community, and his child, have been spreading Motzi Shem Rah (lies, with intent to damage a person’s reputation) to anyone who will listen. This individual created an elaborate falsehood in an effort to damage the school and destroy Rabbi Shulman’s reputation. As everyone who is acquainted with Rabbi Yitzi Shulman knows, he is a kind, thoughtful, honest person and a very talented and caring teacher. This person has accused Rabbi Shulman of breaking his son’s arm and has been parading his son around town showing off his splint/cast and attempting to perpetrate this cruel hoax. We stand 100% behind Rabbi Shulman and are horrified that Rabbi Shulman’s reputation is being tainted by this outrageous lie. Therefore, we felt that it was necessary to write this letter. Just as we conclude the brachos of Shemoneh Esrei with a request for peace, here too, we ask Hashem to bless our wonderful community with renewed peace. Sincerely, Lea E. Goldstein Principal DISCUSSION Motion for Summary Judgment Dismissing the Complaint Defendants pled as a First Affirmative Defense “failure to state a cause of action,” and even though the motion for summary judgment does not reference whether the allegations state a cause of action for defamation, the court is tasked on a motion for summary judgment to review “all the papers and proof submitted” and determine whether “the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party (CPLR 3212[b]). Here, the first affirmative defense is established as it is apparent on the face of the pleadings that the complaint fails to state a cause of action. An element of a cause of action to recover damages for defamation is that the defamation caused special harm or constituted defamation per se. Here, there is no claim for special damages, so the cause of action, in order to survive scrutiny, must plead defamation per se (Laguerre v. Maurice, 192 AD3d 44, 50 [2d Dept 2020]). A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her or his trade, business, or profession; (3) imputes that the plaintiff has a loathsome disease; or (4) imputes unchastity to a woman (Laguerre v. Maurice, 192 AD3d 44, 50 [2d Dept 2020], citing Levy v. Nissani, 179 AD3d 656, 658; Epifani v. Johnson, 65 AD3d 224, 234 [2d Dept 2009]). “When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven” (Liberman v. Gelstein, 80 NY2d 429, 435 [1992]). Here, nothing in the complaint gives rise to the conclusion that Mordechai has been damaged in his “trade, business or profession.” He alleges only that his reputation has been “damaged…in the Jewish community of Rochester, New York, and beyond,” and nothing on the face of the pleadings (or in any of the submissions, which include transcripts of the depositions of the parties), allows a conclusion that Mordechai was damaged in his “trade, business or profession.” The motion for summary judgment is GRANTED and the complaint dismissed in that it fails to state a cause of action. Even if the complaint stated a cause of action for defamation, or even if the court were not to consider the sufficiency of the pleadings, Lea and DHR have established entitlement to summary judgment by demonstrating that the email letter to the parents of students of DHR is protected by a qualified privilege. One such conditional, or qualified, privilege extends to a “communication made by one person to another upon a subject in which both have an interest” (Stillman v. Ford, 22 NY2d 48, 53 [1968]; see Liberman v. Gelstein, 80 NY2d 429, 437 [1992]; Colantonio v. Mercy Med. Ctr., 115 AD3d 902, 903 [2d 2014]). This “common interest” privilege (see Restatement [Second] of Torts §596) has been applied, for example, to employees of an organization (see Loughry v. Lincoln First Bank, 67 NY2d 369, 376 [1986]), members of a faculty tenure committee (Stukuls v. State of New York, 42 NY2d 272 [1977]) and constituent physicians of a health insurance plan (Shapiro v. Health Ins. Plan of Greater NY, 7 NY2d 56, 60-61 [1959]). The rationale for applying the privilege in these circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded (Liberman v. Gelstein, 80 NY2d 429, 437, 605 NE2d 344 [1992]). Here, it in the common interest of the principal of the school and the parents of students to protect the reputation of one of its teachers. However, it is well-settled that the “shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with ‘malice’” (Liberman v. Gelstein, 80 NY2d 429, 437 [1992]; see Park Knoll Assocs. v. Schmidt, 59 NY2d 205, 211 [1983]). “Under common law, malice meant spite or ill will” (Liberman v. Gelstein, 80 NY2d 429, 437 [1992]; Stillman v. Ford, 22 NY2d at 53; Shapiro v. Health Ins. Plan of Greater NY, 7 NY2d at 61). It can also mean false statements issued with a “high degree of awareness of their probable falsity” (Colantonio v. Mercy Med. Ctr., 135 AD3d 686, 692, 24 NYS3d 653, 659 [2d Dept 2016], citing Garrison v. Louisiana, 379 US 64, 74 [1964]; Liberman v. Gelstein, 80 NY2d at 438-439). Mordechai argues here that his pleading on its face establishes a basis for a jury to conclude that the defendants “spoke with malice” (Liberman at 437). He cites in support cases (e.g. Ferrara v. Esquire Bank et al., 153 AD3d 671, 673 [2d Dept 2017]) that state the pleading standard for establishing a cause of action to defeat a motion under CPLR 3211(a) (7) As the Second Department wrote in Ferrara, ” accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently alleges malice to overcome the privilege. A plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7)” (Ferrara v. Esquire Bank, 153 AD3d 671, 673 [2d Dept 2017]) (internal citations and quotations omitted). However, the cases cited by Mordechai, and the standard set forth in Ferrara, are inapplicable. Lea’s motion is one for summary judgment under CPLR 3212, in which the party opposing is required to come forward with admissible proof to demonstrate a question of fact to defeat the motion (see Colantonio v. Mercy Med. Ctr., 135 AD3d 686, 691 [2d Dept 2016]). The Court of Appeals has held that malice, or “spite or ill will,” refers not to defendant’s general feelings about plaintiff, but to the speaker’s motivation for making the defamatory statements (see, Restatement [Second] of Torts §603, and comment a; Stukuls v. State of New York, 42 NY2d at 281-282; Stillman v. Ford, 22 NY2d at 53). If the defendant’s statements were made to further the interest protected by the privilege, it matters not that defendant also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that “malice was the one and only cause for the publication” (Stukuls v. State of New York, 42 NY2d at 282; Liberman v. Gelstein, 80 NY2d 429, 439 [1992]). The alleged defamatory statements must be “consistent only (emphasis added) with a desire to injure to justify sending the question of malice to the jury” (Colantonio v. Mercy Med. Ctr, id.). Here, Mordechai is unable to present admissible evidence to create a material issue of fact. Even assuming the truth and accuracy of the assertion (in paragraph 17 of the plaintiff’s complaint) that “‘Motzi Shem Rah’ in the Orthodox Jewish community is perhaps one of the worst accusations against a person’s character that another can make,” the proof is lacking that the malice it embodies can overcome the defense of qualified privilege. No allegation let alone proof establishes that the email letter sent by principal Lea to parents was motivated solely by malice for Mordechai. At worst Lea was mistaken as to whether the Rennert child’s arm was broken by Rabbi Shulman on the school bus, but the letter was indisputably sent to “further the interest protected by the privilege” (Liberman v. Gelstein, 80 NY2d 429, 439 [1992]). If Lea made a mistake, if Rabbi Shulman really did break the child’s arm (and a medical report dated one month after the accident and with no narrative describing the cause of the injury in no way establishes that Rabbi Shulman really did break the child’s arm), that by itself does not raise an issue of fact as to whether malice “was the one and only cause for the publication” or that she acted with a “high degree of awareness of the probable falsity” of her statements. To the contrary, it is uncontradicted that she diligently investigated the incident and made a reasonable conclusion that Rabbi Shulman did nothing of which he was being accused. In opposition to the motion Mordechai offers only an inconclusive medical report and the inherent meaning of “Motzi Shem Rah.” Such is insufficient to create an issue of fact and defeat the motion. The motion for summary judgment is GRANTED. The complaint is dismissed. Motion for Judgment on the Counterclaims for Unpaid Tuition Defendants claim unpaid tuition in the amount of $125,820.00, an amount that they assert the plaintiff agreed to pay, thus the failure constitutes a breach of contract. Alternatively, defendants claim that the reasonable value of the service provided to Mordechai and his children is the same amount. And, in a third counterclaim, defendants assert they sent an account statement to Mordechai for past due tuition in the same amount, to which he never objected or protested, thus Mordechai is liable under a theory of account stated. Mordechai’s only defense to the motion is that the defendants have failed to join a necessary party, Dara Rennert, the former wife of Mordechai Rennert, who allegedly bears equal responsibility to pay the tuition charges. On that issue defendants have established entitlement to judgment as a matter of law, by referencing a transcript of a divorce proceeding between Mrs. Rennert and Mr. Rennert in which Mordechai agreed as part of the stipulation settling their matrimonial action to be the party responsible for paying his children’s tuition. Accordingly, partial summary judgment is GRANTED. A date will be set for a hearing as to the amount owed for tuition. Defendants are directed to submit an Order. Dated: August 2, 2022
