Scaccia v. MacCurdy

Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint in this defamation action. The proof submitted in support of the motion establishes that the allegedly defamatory statements were made by defendant, President of the Cayuga Vocal Ensemble (Ensemble), to the Music Director of the Ensemble regarding a matter of concern to that organization. That proof is sufficient to establish that the statements were protected by a qualified privilege (see, Foster v Churchill, 87 NY2d 744, 751; Murphy v Herfort, 140 AD2d 415, 416, lv denied 73 NY2d 701, rearg denied 73 NY2d 872; Matter of Kantor v Pavelchak, 134 AD2d 352). Plaintiff’s submissions in opposition to the motion are insufficient to raise a triable issue whether the statements were made with malice (see, Foster v Churchill, supra, at 752; Liberman v Gelstein, 80 NY2d 429, 438-439). The court also properly dismissed the complaint on the alternative ground that defendant is entitled to immunity from liability pursuant to section 720-a of the Not-For-Profit Corporation Law (see, CPLR 3211 [a] [11]). Defendant demonstrated that she is entitled to the benefit of section 720-a, and plaintiff failed to establish a reasonable probability that defendant’s conduct constituted gross negligence or was intended to cause harm (see, CPLR 3211 [a] [11]; cf., Brown v Albany Citizens Council on Alcoholism, 199 AD2d 904). Finally, the court properly exercised its discretion in denying plaintiff’s cross motion seeking sanctions pursuant to 22 NYCRR part 130. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Summary Judgment.) Present— Green, J. P., Pine, Lawton, Callahan and Fallon, JJ.