Opinion
June 17, 1965
Order entered November 30, 1964, unanimously reversed on the law, with $30 costs and disbursements to appellants, and the motion to dismiss the complaint granted. Appellants and respondent for many years were fellow members of the same organization. The statements allegedly made by appellants with respect to respondent were made by reason of their common interest in and duty to the organization. As SILVERMAN, J., pointed out in an earlier decision in this case ( Vecino v. Unity Gallega of United States, N.Y.L.J., Oct. 19, 1964, p. 18, col. 1), a qualified privilege exists as to the statements made. The burden was on the respondent to present evidentiary facts from which a jury could infer malice ( Shapiro v. Health Ins. Plan, 7 N.Y.2d 56). This respondent has failed to do. On the other hand appellants in their respective affidavits have set forth facts and circumstances which negate the existence of malice. Appeal from order entered on January 14, 1965, denying defendants' motion for reargument, dismissed, without costs and without disbursements.
Concur — Breitel, J.P., Rabin, McNally, Stevens and Eager, JJ.