Simons v. Katz , 683 N.Y.S.2d 66 ( 1999 )

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about November 3, 1997, which, insofar as appealed from as limited by plaintiff’s brief, granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The allegedly defamatory statement, contained in a letter written by defendant, an attorney, while representing a client in a partition action against plaintiff, to a nonparty tenant occupying the apartment owned by plaintiff and defendant’s client, and not otherwise published, that “[i]t appears that [plaintiff] has merely been pocketing your rental payments”, was clearly an expression of fact. Viewed in the context of the rest of the letter (see, Brian v Richardson, 87 NY2d 46, 51), the truth of the assertion that plaintiff was diverting the payments was essential to the point of the letter that the tenant send future rent payments to defendant for deposit into an escrow account. However, as defendant made the statement in furtherance of her representation of her client and therefore enjoyed a qualified privilege (see, Toker v Poliak, 44 NY2d 211, 219), and plaintiff failed to raise an issue of fact as to malice (see, Liberman v Gelstein, 80 NY2d 429, 437-439), summary judgment dismissing the complaint was properly granted. We have considered plaintiff’s other arguments and find them to be unavailing. Concur — Sullivan, J. P., Rosenberger, Williams and Tom, JJ.