Universal Oven Co. v. Williams , 290 N.Y.S.2d 540 ( 1968 )

In consolidated appeals, plaintiff in Action No. 1 appeals from an order of the Supreme Court, Queens County, dated June 12, 1967, which denied its motion for partial summary judgment; and defendant Robert W. Williams in Action No. 2 appeals from so much of an order of the same court dated August 21,1967 as, upon resettlement of a prior order, denied a motion, insofar as made by him, for summary judgment dismissing the complaint. Order in Action No. 1 affirmed and order in Action No. 2 affirmed insofar as appealed from, with $10 costs’and disbursements in each appeal. No opinion. Christ, Rabin and Munder, JJ., concur; Beldoek, P. J., concurs in result, although he adheres to the views stated in the dissent in Williams v. Williams (27 A D 2d 550). Hopkins, J., concurs in the affirmance of the order in Action No. 1 and concurs in result in the affirmance as to the order in Action No. 2, with the following memorandum: I am constrained under the authority of Williams v. Williams (27 A D 2d 550) to sustain the validity of the complaint, though I adhere to the views stated in the dissent therein. In addition, I am of the opinion that actual malice (as distinguished from implied malice) was not sufficiently shown to justify a submission of that issue to the jury (cf. Shapiro v. Health Ins. Plan of Greater N.Y., 7 N Y 2d 56, 64; Sheridan v. Crisona, 14 N Y 2d 108, 114; Gilberg v. Goffi, 21 A D 2d 517, affd. 15 N Y 2d 1023). Appellant Robert W. Williams, at the least, had a qualified privilege to transmit a copy of the complaint in Action No. 1 to persons with whom the plaintiff in that action dealt; and falsity alone would not render him liable (Loewinthan v. Le Vine, 299 N. Y. 372, 375). I see no evidence here of “ ‘ personal spite or ill will, or culpable recklessness or negligence ’ ”, which are the indicia of actual malice (Hoeppner v. Dunkirk Print. Co., 254 N. Y. 95, 106).