Hirsch v. Amalgamated Warbasse Houses, Inc.

In a defamation action, plaintiff appeals from (1) an order of the Supreme Court, Kings County, dated October 18, 1974, which (a) denied her motion for summary judgment and (b) dismissed the complaint and (2) the judgment of the same court, entered thereon on September 10, 1975. Order and judgment affirmed, with $50 costs and disbursements. Since both the oral and written communications were qualifiedly privileged (see Byam v Collins, 111 NY 143, 150; Bingham v Gaynor, 203 NY 27, 31), it was "incumbent upon plaintiff to establish by evidentiary facts its allegation of actual malice” in order to surmount the privilege (Kremer Constr. Co., v Garfinkel, 31 AD2d 766; see, also, Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56). This the plaintiff has failed to establish. Gulotta, P. J., Latham, Hargett, Damiani and Christ, JJ., concur.