holding that statement charging plaintiff with “inadequate financial skills and misconduct” was one of mixed opinion where speaker made statement at a personnel committee meeting in which the other members could “ha[ve] reason to believe” that speaker had investigated matter and “possessed information to support the accusations made”
How later courts described this case
- holding that statement charging plaintiff with “inadequate financial skills and misconduct” was one of mixed opinion where speaker made statement at a personnel committee meeting in which the other members could “ha[ve] reason to believe” that speaker had investigated matter and “possessed information to support the accusations made”
- finding that members of non-profit board would assume executive director and personnel committee chair had undisclosed factual basis for their opinions
Written by the judges who cited it.
The opinion
White, J. (concurring in part and dissenting in part).
I *907 concur with the majority that plaintiffs sixth cause of action is sufficient when measured by the standards applicable to a motion to dismiss for failure to state a cause of action (see, Mihlovan v Grozavu, 72 NY2d 506 ; Silsdorf v Levine, 59 NY2d 8 , cert denied 464 US 831 ).
I respectfully dissent from that portion of the majority’s determination sustaining the fourth and fifth causes of action. To meet the burden of establishing "reasonable probability that the specific conduct of such defendant alleged constitutes gross negligence or was intended to cause the resulting harm” that is imposed by CPLR 3211 (a) (11), plaintiff submitted affidavits from several individuals who were involved with defendant Albany Citizens Council on Alcoholism Inc. (hereinafter the council). They averred that it was their "impression” or "belief’ that defendant Charlotte Gray harbored personal animosity toward plaintiff, that she spoke of the possibility of bringing criminal charges against plaintiff and carried a copy of the Penal Law to council meetings, and that they "believed” that she voted for termination without conducting an investigation of the charges. Notably absent from plaintiffs response to the motion is any factual proof showing that Gray’s accusations against him were false or that she disseminated them to the public.
In my view plaintiffs conclusory averments fall far short of satisfying his burden (see, Liberman v Gelstein, 80 NY2d 429, 439 ; Rabideau v Albany Med. Ctr. Hosp., 195 AD2d 923 ; Bardey v Brooke-Hitching, 191 AD2d 243 ; McGovern v Hayes, 135 AD2d 125 , lv denied 72 NY2d 803 ). To conclude otherwise contravenes the purpose of Not-for-Profit Corporation Law § 720-a, which was enacted specifically to shield those who serve without pay as directors, officers and trustees of not-for-profit agencies from lawsuits (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:34a, at 48-49). Accordingly, I would affirm Supreme Court’s dismissal of these causes of actions.
Ordered that the order and judgment is modified, on the law, with costs, by reversing so much thereof as dismissed those portions of the fourth and fifth causes of action as alleged defamation against defendant Charlotte Gray and that portion of the sixth cause of action as alleged defamation against defendant Sarah Hall; motion to dismiss the amended complaint denied to that extent; and, as so modified, affirmed.