Thompson v. Maimonides Medical Center

• Decision Date: 16 February 1982
• Citation: 86 A.D.2d 867,447 N.Y.S.2d 308
• Parties: Warren THOMPSON, Respondent, v. MAIMONIDES MEDICAL CENTER et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 308

447 N.Y.S.2d 308

86 A.D.2d 867

Warren THOMPSON, Respondent, v. MAIMONIDES MEDICAL CENTER et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Feb. 16, 1982.

Bower & Gardner, Siff & Newman, P. C., New York City (L. Kevin Sheridan, John H. Somoza and Barry G. Saretsky, New York City, of counsel), for appellants.

Stolar, Alterman & Gulielmetti, P. C., New York City (Martin R. Stolar, New York City, of counsel; Richard J. Wagner, New York City, on the brief), for respondent.

Before LAZER, J. P., and MANGANO, GIBBONS and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for defamation, intentional infliction of emotional distress and negligence, defendants appeal from an order of the Supreme Court, Kings County, dated February 5, 1981, which granted plaintiff's motion to dismiss certain affirmative defenses, to the extent of (1) dismissing outright the defenses of, inter alia, Workers' Compensation and absolute privilege, and (2) dismissing the defense of qualified privilege with leave to replead.

Order reversed, without costs or disbursements, and motion granted to the extent that the defense of qualified privilege is stricken insofar as it relates to the second, fourth and fifth causes of action, and the defense of Workers' Compensation is stricken as to both causes of action against defendant Manobianco, and as to the third and fourth causes of action against defendant Maimonides.

Plaintiff alleges that, in the hearing of other employees, his supervisor, defendant Manobianco, made a statement to plaintiff's shop steward accusing plaintiff of being a thief. Plaintiff then commenced this action against Manobianco and the employer, Maimonides Medical Center, for damages for, inter alia, loss of reputation, humiliation, severe depression requiring hospitalization, seizures, chest pains, dizziness, and the inability to resume work. Of the five causes of action, the first two are against both defendants and the last three are against Maimonides. The first cause of action alleges defamation and bases Maimonides' liability on respondeat superior. The second cause pleads intentional infliction of emotional distress and also relies on respondeat superior as against Maimonides. The third and fourth causes reiterate the allegations of defamation and emotional distress but attribute liability to Maimonides on the ground that it authorized, encouraged or ratified Manobianco's conduct. The fifth cause of action alleges the negligence of the employer in failing to discipline, control or discharge Manobianco. The answer contains, inter alia, the affirmative defenses of absolute privilege, qualified privilege and Workers' Compensation. Special Term granted plaintiff's motion to strike all of these defenses while granting defendants leave to replead the defense of qualified privilege.

The defense of absolute privilege was properly stricken because no fair inference can be drawn from the complaint that plaintiff instigated or consented to the alleged defamatory statement (see Teichner v. Bellan, 7 A.D.2d 247, 181 N.Y.S.2d 842; Wells v. Belstrat Hotel Corp., 212 App.Div. 366, 208 N.Y.S. 625). The defense of qualified privilege, however, should not have been dismissed as it relates to the first and third causes of action for defamation. A qualified privilege exists whenever the speaker and listener have a common interest in the subject matter of the communication (Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 194 N.Y.S.2d 509, 163 N.E.2d 333; Kilcoin v. Wolansky, 75 A.D.2d 1, 428 N.Y.S.2d 272). Although a plaintiff ultimately may be able to overcome this defense by establishing malice, the malice question should not be decided at the pleading stage (Shapiro v. Health Ins. Plan of Greater N.Y., supra, 7 N.Y.2d p. 61, 194 N.Y.S.2d 509, 163 N.E.2d 333). Since the communication between Manobianco and the shop steward concerned plaintiff's performance, the common interest doctrine may be applicable (see Stukuls v. State of New York, 42 N.Y.2d 272, 397 N.Y.S.2d 740, 366 N.E.2d 829; Gordon v. Allstate Ins. Co., 71 A.D.2d 850, 419 N.Y.S.2d 173). However, since the defense of qualified privilege ultimately does not apply to negligence and intentional infliction of emotional harm, it should have been dismissed as to the second, fourth and fifth causes of action.

The defense of Workers' Compensation was properly stricken as to all the causes of action against Manobianco and it cannot bar the third and fourth causes of action pleading Maimonides' participation in the torts. An intentional tort...