Biegeleisen v. Jacobson

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered July 17, 1992, which granted defendant’s motion for summary judgment dismissing this defamation action, unanimously affirmed, without costs. The statements defendant made during his testimony as an expert witness in the medical malpractice action that had been brought against plaintiff cannot be the subject of a defamation action unless they constituted falsehoods "so obviously irrelevant as to warrant an inference of express malice” (Tolisano v Texon, 144 AD2d 267, 272 [Smith, J., dissenting], revd for reasons stated in dissenting mem 75 NY2d 732). Such is not here the case. Although blunt and degrading, the statements were primarily expressions of opinion, not of facts, 58 and in any event, were directly relevant to defendant’s opinion concerning the status of sclerotherapy as an accepted medical practice for cosmetic surgery. Nor does it avail plaintiff to argue that certain of defendant’s statements were not only factually false but perjurious. We have considered plaintiff’s remaining contentions and find them to be without merit. Concur — Rosenberger, J. P., Wallach, Kupferman and Kassal, JJ.