Kruteck v. Schimmel , 278 N.Y.S.2d 25 ( 1967 )

Order of the Supreme Court, Westchester County, dated July 23, 1966, which denied appellant’s motion to dismiss the complaint or for summary judgment, reversed and summary judgment granted in favor of appellant, with $10 costs and disbursements. In our opinion, the statements alleged to be defamatory were qualifiedly privileged in view of the responsibility, and prominence in the community, of plaintiff’s position as auditor of the Westchester Joint Water Works and in the light of the fact that plaintiff had thrust himself into the vortex of the public discussion concerning this position. Accordingly, he cannot recover damages for such statements unless he proves that the publication was made with actual malice, that is, with knowledge that it was false or with reckless disregard as to whether it was false or not (New York Times Co. v. Sullivan, 376 U. S. 254; Rosenblatt v. Baer, 383 U. S. 75; Time, Inc., v. Hill, 385 U. S. 374; Gilberg v. Goffi, 21 A D 2d 517, affd. 15 N Y 2d 1023). In our opinion, plaintiff failed to submit evidence of actual malice sufficient to raise an issue with respect thereto. Since it appears that plaintiff has not suffered an actionable wrong, it is our conclusion that appellant’s motion for summary judgment should have been granted (Gilberg v. Goffi, supra). Ughetta, Acting P. J., Christ, Rabin, Benjamin and Munder, JJ., concur.