Opinion
June 22, 1990
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Dillon, P.J., Green, Lawton, Davis and Lowery, JJ.
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 N.Y.2d 613, 617-619) or qualifiedly (see, Toker v. Pollak, 44 N.Y.2d 211, 219) privileged, as a matter of law (see, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 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 N.Y. Jur 2d, Defamation and Privacy, § 7) or that it constituted nonactionable opinion (see, Rinaldi v Holt, Rinehart Winston, 42 N.Y.2d 369, 380, cert denied 434 U.S. 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 N.Y.2d 557, 563).