In this defamation action, defendants Stephanie Asadorian and Ralph Asadorian ("the Asadorians") move pursuant to CPLR 3212 for summary judgment dismissing the complaint on the grounds that it fails to state a cause of action and that it is barred by the statute of limitations.

The facts of this case are not in dispute. The Asadorians reside at 415 East 52nd Street in Manhattan in a building known as the "Sutton House". Plaintiff, Viorel Cincu ("Mike"), a former doorman at the Sutton House, was terminated in January, 2006 following an investigation regarding the December 20, 2005 disappearance of an envelope containing $400 that Ralph Asadorian ("Ralph") left at the concierge desk with Mike. Ralph alleged, in a January 11, 2006 letter to the Sutton House's manager ( Raffi Asadorian Aff., Ex. C), that the name, "Phylis Ilie" ("Phylis") was written on the front of the envelope, and Ralph informed Mike that Phylis would pick up the envelope the following day. The envelope contained a $400 cash Christmas gratuity for Phylis, who was the Asadorians' nanny. When Phylis arrived at the building on December 21, the envelope was missing. In the course of a subsequent investigation of the incident by the [*2]building's management, defendant Stephanie Asadorian ("Stephanie") reviewed a closed circuit television ("CCTV") recording of the events that occurred in the Sutton House Lobby on the evening that the envelope went missing.^[FN1] Stephanie stated that after viewing the videotape, the building manager asked her to sign a letter, dated January 20, 2006, confirming what she witnessed on the recording. That letter states:

My husband and I filed a complaint regarding an

envelope that had disappeared after my husband,

. . ., had left it at the concierge desk on December

20, 2005, at approximately 9:30pm.

I, Stephanie Asadorian was asked by the resident

manager, Barry Campfield, to view the CCTV

recorded tapes which clearly show my husband

dropping the envelope off at the desk. I also

witnessed a staff member opening an envelope.

I can see the card design from the said envelope

and I can categorically state that this is indeed

our card.

(Cincu Aff., Ex. B)

The Sutton House thereafter concluded its investigation and determined that plaintiff misappropriated the $400. As a result of this determination, the Sutton House terminated plaintiff's employment. In a subsequent hearing before an Unemployment Insurance Administrative Law Judge ("ALJ"), plaintiff was denied unemployment benefits because the ALJ, relying in part on Stephanie's January 20, 2006 letter, found that plaintiff had been terminated for cause.

Plaintiff thereafter filed this defamation complaint which states that in "December, 2005" the Asadorian's wrote a letter to defendant Douglas Elliman Property Management ("Elliman") "maliciously" intending to injure plaintiff and deprive him of the respect and esteem essential to his occupation and good name, "did with actual malice, falsely and wrongfully write and deliver a letter to . . . Elliman accusing Plaintiff of taking an envelope containing a Christmas gratuity left at the front desk for a domestic employee." (Ralph Asadorian Aff., Ex. A, para. 7). The complaint further alleges that by reason of the letter, plaintiff was terminated from his employment.

In an affidavit submitted in opposition to the motion to dismiss, plaintiff clarifies, for the first time, that the defamation complaint is based on Stephanie's January 20, 2006 letter and plaintiff claims that the statement "that Asadorian witnessed the opening of the envelope by a staff member" implicates plaintiff. (Cincu Aff, para. 4) Plaintiff also claims that Stephanie's [*3]statement was a "precise and definite accusation against plaintiff." ( Rosenthal Aff., para. 10)

In support of the motion to dismiss, the Asadorians argue that the one year statute of limitations for defamation actions began running on January 20, 2006, the date that Stephanie Asadorian's letter was published and that the complaint must be dismissed because it was not filed until May 14, 2007, more than 15 months after publication. In addition, they argue that Stephanie's letter was merely a true statement of fact regarding what she saw on the CCTV recording, and is not actionable as defamation.

In opposition to dismissal, plaintiff claims that the January 20, 2006 letter was republished on June 7, 2006 when it was produced as evidence at the Unemployment Hearing and that the one year limitation period runs from the republication date. He also argues Stephanie's statement was intended to be an assertion of fact intended to deprive plaintiff of his good name and occupation.

Discussion

In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating that there are no triable issues of fact and he or she is entitled to judgment as a matter of law. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]; Prince v. DiBenedetto, 189 AD2d 757, 759 [1993]) Once the movant has established a prima facie case, the party opposing the motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980])

The elements of a claim for defamation are "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum a negligence standard, and it must either cause special harm or constitute defamation per se." (Dillon v. City of New York, 261 AD2d 34, 38 [1st Dept 1999][citations omitted])

Defamation arises from "making a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right thinking persons . . . ." (Foster v. Churchill, 87 NY2d 744, 751 [1996][citations & internal quotations omitted]) In determining whether a claim for defamation has been adequately pleaded,

[T]he words must be construed in the context of the

entire statement or publication as a whole, tested

against the understanding of the average reader,

and if not reasonably susceptible of a defamatory

meaning, they are not actionable and cannot be made

so by strained or artificial construction.

(Dillon v. City of New York, 261 AD2d at 38 [citations omitted])

In this case, plaintiff has failed to demonstrate that Stephanie made a false statement, which is a necessary element of a defamation cause of action. (See, Dillon v. City of New York, 261 AD2d at 38 [truth is a complete defense to a defamation action]; Silverman v. Clark, 35 AD3d 1, 12 [1st Dept 2006]) Stephanie's statements, in the letter, were merely a recitation of what she saw on the CCTV recording. She neither named plaintiff as the alleged culprit nor accused him, or anyone else, of taking the money. Indeed, plaintiff never alleges, either in the complaint or in his affidavit that Stephanie's statement about what she saw on the CCTV recording was [*4]false.

Moreover, Stephanie's statements are not actionable because of the "common interest privilege" that grants a qualified privilege where the communication is made to persons who have some common interest in the subject matter. (Foster v. Churchill, 87 NY2d 744, 751 [1996]; Lieberman v. Gelstein, 80 NY2d 429 [1992]) This shield is effective unless the defendant acted with actual malice in his/her accusations against the plaintiff. In Russ v. State Employees Federal Credit Union, 298 AD2d 791, 793 (3rd Dept 2002), the court stated that a showing of malice is required:

in order to defeat the qualified privilege that arises

when a person makes a good faith bona fide

communication upon a subject in which he or she has

has an interest, or a legal moral or societal interest to

speak and the communication is made to a person

with a corresponding interest.

Mere conclusory allegations of malice or allegations resting on mere suspicion or surmise, such as those that are contained in plaintiff's complaint, are insufficient to warrant an inference of malice and thereby sustain a complaint for defamation. (See, Hanlin v. Sternlicht, 6 AD3d 334 [1st Dept 2004]). Thus, here, assuming arguendo that Stephanie's statement could be construed as defamatory, she is protected by a qualified privilege that shields her from liability because her statement was made in good faith upon a subject in which she had a legal and moral interest to speak to a person with a corresponding interest.

Finally, the publication of Stephanie's statement to the Labor Department as part of plaintiff's unemployment insurance hearing is not actionable as it is well settled that statements, such as Stephanie's, are privileged having been made in connection with a quasi-judicial proceeding. (See, Singletary v. All Metro Aids, Inc., 247 AD2d 252 [1st Dept 1998] lv denied 92 NY2d 804])

The court also notes that even if Stephanie's statement could be construed as defamatory, the action is untimely as the cause of action for defamation accrued more than 15 months before this action was commenced. (Singletary v. All Metro Aids, Inc., 247 AD2d at 252)

Accordingly, it is

ORDERED that the motion by Stephanie and Ralph Asadorian to dismiss the complaint as against them is granted; it is further

ORDERED that within 30 days of entry of this order, movants shall serve a copy upon all parties with notice of entry.

This decision constitutes the order and judgment of the court and the action is severed and continued as against Douglas Elliman Property Management and the Clerk is directed to enter judgment accordingly.

DATE_______________________

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Hon. Doris Ling-Cohan, J.S.C. [*5]C:\htformat\f5127480.txt