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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: March 5, 2019

Defamation Claim Dismissed; Alleged Defamatory Statements Subject to Qualified Privilege

On February 20, 2019, the Second Department issued a decision in Udeogalanya v. Kiho, 2019 NY Slip Op. 01251, holding that a defamation claim should be dismissed based on the qualified privilege, explaining:

We agree with the defendants’ contention, raised as an alternative ground for affirmance, that the challenged statements were protected by a qualified privilege. A qualified privilege extends to a communication made by one person to another upon a subject in which both have an interest. The privilege does not apply where the plaintiff can demonstrate that the communication was not made in good faith, but was motivated solely by malice, meaning, in this context, spite or a knowing or reckless disregard of a statement’s falsity. However, mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege.

Here, based on the plaintiff’s evidence, the challenged statements concerned a matter in which the defendants and the recipients of the defendants’ emails had a common interest, namely, the academic reputation and integrity of the School of Business and its faculty. Contrary to the plaintiff’s contention, accepting her evidence as true and affording her every favorable inference which may be properly drawn from it, that evidence does not support a reasonable conclusion that the challenged statements were motivated solely by malice.

(Internal quotations and citations omitted).

Civil litigation can involve claims that cause real reputational harm, but not every statement can be the subject of a defamation claim. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about whether statements about you or your business can be the basis for a claim for defamation.

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