Opinion
January 27, 1986
Appeal from the Supreme Court, Nassau County (Lockman, J.).
Appeal from the order dismissed (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Judgment affirmed.
Defendant Weinstein is awarded one bill of costs.
As plaintiff concedes in his brief, the alleged libel was communicated by defendant Weinstein (upon a subject in which his client had a financial interest) to the custodian of his client's financial assets, and, as such, the communication is cloaked with a qualified common-interest privilege (see, e.g., Friedman v Ergin, 110 A.D.2d 620, affd 66 N.Y.2d 645). To overcome this privilege, it was necessary for plaintiff to make an evidentiary showing that the alleged defamatory statements were written with actual malice, which is defined as personal spite, ill will or culpable recklessness or negligence (see, e.g., Konowitz v Archway School, 65 A.D.2d 752; Shapiro v Health Ins. Plan, 7 N.Y.2d 56, 61). As the one opposing a motion for summary judgment, plaintiff could only meet this burden by an evidentiary showing in admissible form sufficient to require a trial of material issues of fact on the issue of actual malice (see, e.g., Dano v Royal Globe Ins. Co., 59 N.Y.2d 827, 829). Proof of falsity alone is insufficient (Kadish v Dressner, 86 A.D.2d 622; Friedman v Ergin, supra). Nor are mere conclusory allegations or bald assertions of fact, absent documentary corroboration, sufficient to meet this burden (see, e.g., Shapiro v Health Ins. Plan, supra; Kadish v Dressner, supra; Green v Kinsella, 36 A.D.2d 677). Plaintiff utterly failed to provide evidentiary support for his claim of actual malice beyond such bald conclusory allegations. At most plaintiff has cast suspicion upon defendant Weinstein's motives but "suspicion, surmise and accusation are not enough" (Klein v Prial, 32 A.D.2d 925, 926, affd 28 N.Y.2d 506). Nor was defendant Weinstein's letter "so extravagant or so vituperative in its character as to justify an inference of malice" (Mercedes-Benz of N. Am. v Finberg, 58 A.D.2d 808, 809; see also, Vacca v General Elec. Credit Corp., 88 A.D.2d 740; Green v Kinsella, supra).
Plaintiff's cross motion did not raise more than a hypothetical hope that continued discovery would reveal the evidentiary support required. Consequently, Special Term did not err in denying plaintiff's cross motion (see, e.g., Dano v Royal Globe Ins. Co., supra; Harris v Alcan Aluminum Corp., 91 A.D.2d 830, affd 58 N.Y.2d 1036). Gibbons, J.P., Weinstein, Eiber and Kooper, JJ., concur.