Fogarty v. Transmedia Network, Inc.

Appellate Division of the Supreme Court of New York

Fogarty v. Transmedia Network, Inc.

2 A.D.3d 269, 768 N.Y.S.2d 332, 2003 N.Y. App. Div. LEXIS 13314

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 16, 2003

StatusPublished

Cited by1 cases

This text of 2 A.D.3d 269 (Fogarty v. Transmedia Network, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fogarty v. Transmedia Network, Inc., 2 A.D.3d 269, 768 N.Y.S.2d 332, 2003 N.Y. App. Div. LEXIS 13314 (N.Y. Ct. App. 2003).

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Opinion

[270]*270Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about November 6, 2002, which denied plaintiff’s motion to vacate an order of the same court and Justice granting defendants’ motion for summary judgment on default, unanimously affirmed, without costs.

Plaintiffs motion for vacatur was properly denied by reason of her failure to demonstrate a meritorious cause of action (see Guerre v Trustees of Columbia Univ., 300 AD2d 29 [2002]). The complaint, alleging libel and slander, is premised upon statements made in an e-mail by a vice-president of plaintiffs then-employer, defendant Transmedia, to other Transmedia management personnel respecting an apparently suspicious business transaction in which plaintiff had been involved. Inasmuch as the challenged communication was qualifiedly privileged (see Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56 [1959]), the merit of plaintiffs claims was not demonstrable without a prima facie showing that the complained-of statements were maliciously motivated (see id.; and see Cosme v Town of Islip, 63 NY2d 908 [1984]). No such showing was made. Contrary to plaintiff’s contention, the e-mail is not facially indicative of malice, and the record discloses no other ground supporting an inference of malice. The e-mail’s author, prior to sending the communication, far from acting with reckless disregard for the truth, evidently did take reasonable steps to investigate the assertedly improper transaction (see Sweeney v Prisoners’ Legal Servs. of N.Y., 84 NY2d 786 [1995]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur—Nardelli, J.P., Saxe, Friedman, Marlow and Gonzalez, JJ.

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[270]*270Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about November 6, 2002, which denied plaintiff’s motion to vacate an order of the same court and Justice granting defendants’ motion for summary judgment on default, unanimously affirmed, without costs.

Plaintiffs motion for vacatur was properly denied by reason of her failure to demonstrate a meritorious cause of action (see Guerre v Trustees of Columbia Univ., 300 AD2d 29 [2002]). The complaint, alleging libel and slander, is premised upon statements made in an e-mail by a vice-president of plaintiffs then-employer, defendant Transmedia, to other Transmedia management personnel respecting an apparently suspicious business transaction in which plaintiff had been involved. Inasmuch as the challenged communication was qualifiedly privileged (see Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56 [1959]), the merit of plaintiffs claims was not demonstrable without a prima facie showing that the complained-of statements were maliciously motivated (see id.; and see Cosme v Town of Islip, 63 NY2d 908 [1984]). No such showing was made. Contrary to plaintiff’s contention, the e-mail is not facially indicative of malice, and the record discloses no other ground supporting an inference of malice. The e-mail’s author, prior to sending the communication, far from acting with reckless disregard for the truth, evidently did take reasonable steps to investigate the assertedly improper transaction (see Sweeney v Prisoners’ Legal Servs. of N.Y., 84 NY2d 786 [1995]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur—Nardelli, J.P., Saxe, Friedman, Marlow and Gonzalez, JJ.

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Bluebook (online)

2 A.D.3d 269, 768 N.Y.S.2d 332, 2003 N.Y. App. Div. LEXIS 13314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fogarty-v-transmedia-network-inc-nyappdiv-2003.

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