Mihlovan v. Grozavu

• Decision Date: 17 November 1988
• Citation: 72 N.Y.2d 506,534 N.Y.S.2d 656,531 N.E.2d 288
• Parties: , 531 N.E.2d 288 Dean MIHLOVAN, Appellant, v. Elena GROZAVU, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 656

534 N.Y.S.2d 656

72 N.Y.2d 506, 531 N.E.2d 288

Dean MIHLOVAN, Appellant, v. Elena GROZAVU, et al., Respondents.

Court of Appeals of New York.

Nov. 17, 1988.

Norman A. Olch, New York City, for appellant.

Armand Fried, New York City, for respondents.

OPINION OF THE COURT

PER CURIAM.

In this defamation action, plaintiff alleged that defendants maliciously made false statements about him during the course of meetings on church elections. Defendants moved to dismiss the complaint asserting the defense of qualified privilege and Supreme Court granted the motion.

The Appellate Division, 131 A.D.2d 550, 516 N.Y.S.2d 483, incorrectly characterized Supreme Court's ruling on defendants' motion as a grant of summary judgment pursuant to CPLR 3212. Supreme Court's order, however, dismissed the complaint for failure to state a cause of action (CPLR 3211[a][7] ), noting that defendants' preanswer motion sought dismissal "pursuant to CPLR 3211". Indeed, in their arguments to Supreme Court and the Appellate Division, both parties treated the motion solely as one for dismissal for failure to state a cause of action. Thus, the Appellate Division could not properly convert defendants' motion into a motion for summary judgment absent "adequate notice to the parties" (CPLR 3211[c] ) which, in this case, should have been expressly given by the court. Neither party had otherwise received "adequate notice" by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were "deliberately charting a summary judgment course" ^* (Four Seasons Hotels v. Vinnik, 127 A.D.2d, at 310, 320, 515 N.Y.S.2d 1; cf., Monteferrante v. New York City Fire Dept., 63 A.D.2d 576, 404 N.Y.S.2d 629, affd. for reasons stated below 47 N.Y.2d 737, 417 N.Y.S.2d 253, 390 N.E.2d 1177). Nor did the parties indicate that the case involved a purely legal question rather than any issues of fact (Four Seasons Hotels v. Vinnik, 127 A.D.2d at 320, 515 N.Y.S.2d 1, supra; Siegel, Supp. Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3211:44, at 3 [1988 Supp.Pamph.] ). Consequently, the court's sua sponte treatment of the motion as one for summary judgment deprived plaintiff of the "opportunity to make an appropriate record" and thus thwarted the very purpose of CPLR 3211(c) (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970).

Moreover, "given their most favorable intendment" (Arrington v. New York Times Co., 55 N.Y.2d 433, 442, 449 N.Y.S.2d 941, 434 N.E.2d 1319), the allegatio of plaintiff's complaint sufficiently state a cause of action for defamation. Notwithstanding defendants' assertion of a qualified privilege in that the allegedly defamatory statements, made during church meetings, were "fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned" (Lovell Co. v. Houghton, 116 N.Y. 520, 526, 22 N.E. 1066), plaintiff's allegations that the statements were maliciously made, if proven, would overcome that defense (Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 376, 502 N.Y.S.2d 965, ...