Buckley v. Litman

Appeal from an order of the Supreme Court at Special Term (Quinn, J.), entered December 18, 1980 in St. Lawrence County, which denied defendant’s motion for summary judgment. Plaintiff, a registered physician’s assistant, was employed by defendant, a medical doctor, from July 1,1978 until September 8,1978. Suspecting that plaintiff had engaged in the unauthorized removal of clinical records from his offices, defendant conducted a unilateral investigation in an attempt to discover the whereabouts of the missing records, but 860 apparently never confronted or accused plaintiff. After plaintiff left his employ, defendant wrote to Dr. William Sipple, the assistant executive secretary of the Physician’s Assistant Licensure Board, accusing plaintiff of stealing the records. He also sent a copy of the letter to Dr. Mark Chalom, the only other family practitioner in the vicinity, who had supervised plaintiff during the month of August, 1978 when defendant was unavailable. Defendant had been informed that plaintiff and Dr. Chalom were contemplating a working relationship, and, in fact, plaintiff began working under Dr. Chalom’s supervision shortly after the letter was sent. Dr. Chalom received and read the letter. A copy of the letter was also sent to the Sheriff, but it was returned unopened. In this libel action, defendant asserted as affirmative defenses the existence of an absolute privilege with respect to the letter sent to Dr. Sipple and a qualified privilege with respect to the copy sent to Dr. Chalom. Special Term denied defendant’s motion for summary judgment and this appeal ensued. Initially, we find no need to reach the question of whether the letter to Dr. Sipple was protected by an absolute rather than a qualified privilege. A communication to a privileged as well an an unprivileged recipient is not privileged (Bingham v Gaynor, 203 NY 27, 32), and defendant does not contend that an absolute privilege existed with respect to Dr. Chalom, to whom a copy of the letter to Dr. Sipple was sent. In our view, the only issue to be addressed is whether the defamatory communication to Dr. Chalom was subject to a qualified privilege. Extension of that privilege to the unsolicited furnishing to prospective employers of material which is libelous per se does not advance the policy which permits unhindered communication made pursuant to a moral duty and a mutual interest in the subject of the communication (see Prosser, Torts [4th ed], § 115, pp 788-789), but operates instead to confer a license to defame. If unsolicited statements of this nature may, with impunity, be made to all potential employers, they might just as well be published in the mass media for the social or moral duty involved is no less compelling. The duty giving rise to a qualified privilege arises out of the inquiry by the prospective employer, not out of mere voluntary impulse. Order affirmed, with costs. Sweeney, Yesawich, Jr., and Herlihy, JJ., concur.