| Fogarty v Transmedia Network |
| 2003 NY Slip Op 19572 [2 AD3d 269] |
| December 16, 2003 |
| Appellate Division, First Department |
| As corrected through |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Jacqueline A. Fogarty, Appellant, v Transmedia Network, Inc., et al., Respondents. |
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Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about November 6, 2002, which denied plaintiff's motion to vacate an order of the same court and Justice granting defendants' motion for summary judgment on default, unanimously affirmed, without costs.
Plaintiff's motion for vacatur was properly denied by reason of her failure to demonstrate a meritorious cause of action (see Guerre v Trustees of Columbia Univ., 300 AD2d 29 [2002]). The complaint, alleging libel and slander, is premised upon statements made in an e-mail by a vice-president of plaintiff's then-employer, defendant Transmedia, to other Transmedia management personnel respecting an apparently suspicious business transaction in which plaintiff had been involved. Inasmuch as the challenged communication was qualifiedly privileged (see Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56 [1959]), the merit of plaintiff's claims was not demonstrable without a prima facie showing that the complained-of statements were maliciously motivated (see id.; and see Cosme v Town of Islip, 63 NY2d 908 [1984]). No such showing was made. Contrary to plaintiff's contention, the e-mail is not facially indicative of malice, and the record discloses no other ground supporting an inference of malice. The e-mail's author, prior to sending the communication, far from acting with reckless disregard for the truth, evidently did take reasonable steps to investigate the assertedly improper transaction (see Sweeney v Prisoners' Legal Servs. of N.Y., 84 NY2d 786 [1995]).
We have considered plaintiff's remaining arguments and find them unavailing. Concur—Nardelli, J.P., Saxe, Friedman, Marlow and Gonzalez, JJ.