Gordon v. Allstate Insurance

Appellate Division of the Supreme Court of New York

Gordon v. Allstate Insurance

71 A.D.2d 850, 419 N.Y.S.2d 173, 1979 N.Y. App. Div. LEXIS 13107

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

DecidedAugust 6, 1979

StatusPublished

Cited by9 cases

This text of 71 A.D.2d 850 (Gordon v. Allstate Insurance) 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.

Bluebook

Gordon v. Allstate Insurance, 71 A.D.2d 850, 419 N.Y.S.2d 173, 1979 N.Y. App. Div. LEXIS 13107 (N.Y. Ct. App. 1979).

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—In an action, inter alia, to recover damages for breach of contract and slander, plaintiff appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County, dated January 9, 1978, as granted the branch of defendants’ motion which was for summary judgment dismissing the cause of action for slander per se. Order affirmed insofar as appealed from, without costs or disbursements. Plaintiff was terminated from his job as an insurance agent in defendant Allstate’s employ. His complaint alleges that during a meeting attended by the individual defendants, the reason for his termination was announced as being "Because of your kiting.” Subsequently, other agents heard that plaintiff was fired for kiting with respect to filing remittances to the company. Assuming that the word "kiting” is of a defamatory nature, we believe that defendants were qualifiedly privileged to use the term under these facts. "It is an established rule that communications made by one person to another upon a subject in which both have an interest are protected by a qualified privilege” (Kenny v Cleary, 47 AD2d 531, 532). In this case, the individual defendants were plaintiff’s superiors who assuredly had an interest in plaintiff’s job performance and the reason for his termination. In imparting this information to plaintiff’s fellow insurance agents, there was a mutuality of interest in the subject matter of the statement which supports a qualified privilege (see Kroger Co. v Young, 210 Va 564; Ponticelli v Mine Safety Appliance Co., 104 RI 549). To overcome this qualified privilege, plaintiff has attempted to show that the statements were motivated by "express malice or actual ill-will” (see Ashcroft v Hammond, 197 NY 488, 495; see, also, Stukuls v State of New York, 42 NY2d 272, 279). However, a review of plaintiff’s affidavit and his testimony at his examination before trial reveal that there is an absence of any factual showing of malice. Mere conclusory allegations based upon suspicion and surmise will not defeat a motion for summary judgment (see Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56, 63-64). Hopkins, J. P., Suozzi and Gulotta, JJ., concur.

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—In an action, inter alia, to recover damages for breach of contract and slander, plaintiff appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County, dated January 9, 1978, as granted the branch of defendants’ motion which was for summary judgment dismissing the cause of action for slander per se. Order affirmed insofar as appealed from, without costs or disbursements. Plaintiff was terminated from his job as an insurance agent in defendant Allstate’s employ. His complaint alleges that during a meeting attended by the individual defendants, the reason for his termination was announced as being "Because of your kiting.” Subsequently, other agents heard that plaintiff was fired for kiting with respect to filing remittances to the company. Assuming that the word "kiting” is of a defamatory nature, we believe that defendants were qualifiedly privileged to use the term under these facts. "It is an established rule that communications made by one person to another upon a subject in which both have an interest are protected by a qualified privilege” (Kenny v Cleary, 47 AD2d 531, 532). In this case, the individual defendants were plaintiff’s superiors who assuredly had an interest in plaintiff’s job performance and the reason for his termination. In imparting this information to plaintiff’s fellow insurance agents, there was a mutuality of interest in the subject matter of the statement which supports a qualified privilege (see Kroger Co. v Young, 210 Va 564; Ponticelli v Mine Safety Appliance Co., 104 RI 549). To overcome this qualified privilege, plaintiff has attempted to show that the statements were motivated by "express malice or actual ill-will” (see Ashcroft v Hammond, 197 NY 488, 495; see, also, Stukuls v State of New York, 42 NY2d 272, 279). However, a review of plaintiff’s affidavit and his testimony at his examination before trial reveal that there is an absence of any factual showing of malice. Mere conclusory allegations based upon suspicion and surmise will not defeat a motion for summary judgment (see Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56, 63-64). Hopkins, J. P., Suozzi and Gulotta, JJ., concur.

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71 A.D.2d 850, 419 N.Y.S.2d 173, 1979 N.Y. App. Div. LEXIS 13107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-allstate-insurance-nyappdiv-1979.

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