Colantonio v. Mercy Med. Ctr.

• Decision Date: 26 March 2014
• Parties: Anthony COLANTONIO, etc., respondent, v. MERCY MEDICAL CENTER, et al., appellants.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 902

982 N.Y.S.2d 563

2014 N.Y. Slip Op. 02009

Anthony COLANTONIO, etc., respondent,

v.MERCY MEDICAL CENTER, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

March 26, 2014.

Ward Greenberg Heller & Reidy LLP, Rochester, N.Y. (Thomas D'Antonio of counsel), for appellants.

Agoglia, Holland & Agoglia, P.C., Jericho, N.Y. (E. Kevin Agoglia of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action to recover damages for defamation, the defendants appeal (1) from an order of the Supreme Court, Nassau County (Diamond, J.), dated January 3, 2012, which denied their motion to dismiss the complaint pursuant to CPLR 3211(a), and (2), as limited by their brief, from so much of an order of the same court dated May 7, 2012, as, upon renewal, adhered to the original determination.

ORDERED that the appeal from the order dated January 3, 2012, is dismissed, as that order was superseded by the order dated May 7, 2012; and it is further,

ORDERED that the order dated May 7, 2012, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

Pursuant to the federal Health Care Quality Improvement Act of 1986 (42 USC §§ 11101 et seq.), a hospital is required to make certain reports to the National Practitioner Data Bank (hereinafter the NPDB) regarding actions affecting a physician's clinical privileges ( see42 USC §§ 11133, 11134; Moorman v. Huntington Hosp., 254 A.D.2d 465, 466–467, 678 N.Y.S.2d 787). The plaintiff commenced this action on April 27, 2011, alleging, inter alia, that the defendants Mercy Medical Center (hereinafter Mercy), Patricia Garofalo, and David Mandel defamed him with respect to three written communications sent to the NPDB regarding the suspension of his clinical privileges at Mercy. The first cause of action pertains to a letter dated April 28, 2010, that was prepared by Garofalo, the second cause of action pertains to a letter dated November 22, 2010, that was prepared by Mandel, the third cause of action pertains to a Corrected Adverse Action Report dated April 27, 2010, that was prepared by Mandel (hereinafter the Corrected Report), and the fourth cause of action alleges that Mercy is vicariously liable with respect to those communications.

Upon renewal, the Supreme Court properly adhered to its determination denying the defendants' motion to dismiss the complaint. “A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty( Byam v. Collins, 111 N.Y. 143, 150, 19 N.E. 75). To the extent that this privilege (hereinafter the common-interest privilege) may apply to the communications at issue ( see Stukuls v. State, 42 N.Y.2d 272, 278–279, 397 N.Y.S.2d 740, 366 N.E.2d 829), the common-interest privilege can be overcome by a showing of malice ( see Sokol v. Leader, 74 A.D.3d 1180, 1182, 904 N.Y.S.2d 153). At this juncture, the allegations of malice that were set forth in the complaint and in the plaintiff's affidavit preclude dismissal of the complaint for failure to state a cause of action ( seeCPLR 3211[a][7] ). Notably, a plaintiff has “no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)” ( Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Demas v. Levitsky, 291 A.D.2d 653, 661–662, 738 N.Y.S.2d 402).

Upon renewal, the defendants similarly failed to establish their entitlement to dismissal pursuant to CPLR 3211(a)(1), based on the common-interest privilege. “A CPLR 3211(a)(1) motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” ( Jesmer v. Retail Magic, Inc., 55 A.D.3d 171, 180, 863 N.Y.S.2d 737 [internal quotation marks omitted] ). As an initial matter, few of the documents relied on by the defendants actually constituted documentary evidence ( see Fontanetta v. John Doe 1, 73 A.D.3d 78, 83, 898 N.Y.S.2d 569). In any event, contrary to the defendants' contention, a letter dated February 1, 2012, that was prepared by the United States Department of Health and Human Services, upon which the defendants based their motion to renew, failed to establish the defense that the defendants did not act with malice.

The defendants contend that the one-year statute of limitations applicable to defamation causes of action bars the third cause of action, which alleged defamation, and was premised on...