Dolan v. Buffalo News, Division of Berkshire Hathaway, Inc.

Order insofar as appealed from unanimously reversed on the law without costs and motion denied. Memorandum: The court should have denied defendant’s motion seeking partial summary judgment dismissing plaintiffs’ defamation action on the ground that defendant’s reply to the Consumer Fraud Bureau of the State Attorney-General’s Office was subject to an absolute privilege. We conclude that communications made to the Attorney-General’s Office enjoy a qualified rather than an absolute privilege. The Attorney-General does not act in a judicial or quasi-judicial capacity because, although he investigates allegedly fraudulent or illegal acts, he must seek enforcement in court (see, Executive Law §63 [12]; Toker v Poliak, 44 NY2d 211, 222; Grossman v Fieland, 107 AD2d 659; cf, Mancini v Marine Midland Bank, 185 AD2d 682, Iv denied 80 NY2d 760; Herzfeld & Stern v Beck, 175 AD2d 689, Iv dismissed 79 NY2d 914; Missick v Big V Supermarkets, 115 AD2d 808, appeal dismissed 67 NY2d 938; Stilsing Elec, v Joyce, 113 AD2d 353). We do not consider defendant’s argument that it is entitled to summary judgment on the issue of qualified privilege because it was not raised at Supreme Court. (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Dismiss Complaint.) Present — Callahan, J. P., Pine, Lawton, Boehm and Davis, JJ.