Caruso v. City of Buffalo Urban Renewal Agency

162 A.D.2d 974, 557 N.Y.S.2d 200, 1990 N.Y. App. Div. LEXIS 9716

Opinion

Order unanimously affirmed without costs. Memorandum: Defendants City of Buffalo and William Buyers, as Commissioner of the Department of Human Resources, contend on this appeal that Supreme Court erred in denying their motion for summary judgment seeking dismissal of a complaint denominated "First Action” which asserts a cause of action for slander. We disagree. In our view, Supreme Court properly denied the motion because defendants failed to proffer proof in admissible form demonstrating that the statement attributed to defendant Buyers was, under the facts and circumstances surrounding its publication, absolutely (see, Clark v McGee, 49 NY2d 613, 617-619) or qualifiedly (see, Toker v Pollak, 44 NY2d 211, 219) privileged, as a matter of law (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Further, defendants failed to establish, prima facie, that the statement uttered by Buyers did not, as a matter of law, constitute slander per se (see, 43 NY Jur 2d, Defamation and Privacy, § 7) or that it constituted nonactionable opinion (see, Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380, cert denied 434 US 969). Additionally, in support of their motion, defendants tendered only an affidavit of their attorney, who had no personal knowledge of the facts and circumstances surrounding the statement attributed to defendant Buyers or its publication. Such an affidavit of counsel is "without evidentiary value and thus unavailing” (Zuckerman v City of New York, 49 NY2d 557, 563). (Appeals from order of Supreme Court, Erie County, Mintz, J.—summary judgment.) Present—Dillon, P. J., Green, Lawton, Davis and Lowery, JJ.