Cosme v. Town of Islip ( 1984 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Defendant Town Supervisor Peter F. Cohalan, as an executive officer of a local government, was entitled to an absolute privilege for statements made during the discharge of his responsibilities about matters within the ambit of his duties (Clark v McGee, 49 NY2d 613, 617; see Stukuls v State of New York, 42 NY2d 272, 278).

Although there may be some question about whether defendants Frank Jones and Gregory Munson were entitled to an absolute or qualified privilege, it is clear that they were at least entitled to a qualified privilege and, although malice is alleged in the complaint, no evidence was presented to show a wrongful intent to harm plaintiff. Nor was there any evidence, aside from plaintiff’s conclusory allegations, to indicate disregard for the truth, much less reckless disregard for the truth (see Zuckerman v City of New York, 49 NY2d 557, 562). Absent a showing of malice, the existence of a qualified privilege on behalf of defendants Jones and Munson leaves no issue of fact to be passed upon by the jury.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.