Margolis v. Faber

—Order, Supreme Court, New York County (Carol Huff, J.), entered February 25, 1994, which, insofar as appealed from, denied defendant’s motion for summary judgment, unanimously affirmed, without costs.

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 AD2d 147, 149, appeal dismissed 84 NY2d 849). Also, whether defendant acted with actual malice, is an issue not amenable to summary judgment treatment (O’Neil v Peekskill Faculty Assn., 120 AD2d 36, 43, lv dismissed 69 NY2d 984), especially where, as here, plaintiff has not yet had an opportunity to conduct disclosure (Bigman v Dime Sav. Bank, 144 AD2d 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.