Upon the foregoing papers, defendants' motion to dismiss is denied, and plaintiff's cross motion is granted to the extent indicated.

Plaintiff commenced this action upon allegations of defamation and prima facie tort against these defendants for acts committed while plaintiff was employed as a junior varsity basketball coach at the defendant high school.^[FN1] According to the papers before the Court, plaintiff entered into an employment contract with defendant MONSIGNOR FARRELL HIGH SCHOOL to teach class and coach its junior varsity basketball team in August 2002. It is further alleged that in March 2007, plaintiff was obliged to meet with defendants ROBERT BESIGNANO, a member of the faculty, and MONSIGNOR JOHN PADDACK, the principal of the school, at which time he was confronted with allegations that he had engaged in "inappropriate relationships [or] ... inappropriate contact with the boys" on the junior varsity basketball team. Plaintiff claims, inter alia, that these statements were made public to other coaches, teachers and parents at the school, as a result of which his employment as a basketball coach was terminated. He also claims that he has been unable to secure employment as a basketball coach elsewhere.

In the current application, defendants seeks dismissal of the complaint on the ground that plaintiff failed to plead his defamation cause of action with the required specificity, and that the alleged statements were not defamatory in nature. Rather, it is claimed that they were merely expressions of opinion and, therefore, not actionable. Defendants also contend that the alleged statements are protected by a qualified privilege. In this regard, defendants maintain that the alleged statements were made in private meetings with school officials to address their concerns about plaintiff and the well-being of the students, as well as to uphold school policies and maintain the integrity of both the basketball program and the overall athletic program at defendant high school. More specifically, defendants maintain that since the statements in question were based on reports made by them in their managerial role regarding an employee's job-related misconduct, they are qualifiedly privileged. In addition, defendants contend that the complaint is devoid of any factual allegations of the ill will, malice or reckless disregard which could defeat their claim of qualified privilege.

With regard to plaintiff's cause of action for prima facie tort, defendants contend that plaintiff has failed to plead the elements of "disinterested malevolence" and "special damages", the latter requiring a particularized statement by plaintiff of the reasonable, identifiable and measurable losses [*2]allegedly suffered. With regard to the element of disinterested malevolence, defendants contend that plaintiff's allegations of the infliction of harm for purely personal reasons effectively negates any claim of disinterested malevolence. Finally, defendants contend that plaintiff's claim of prima facie tort is duplicative of his defamation action and should be dismissed.

In response, plaintiff has cross-moved for leave to amend the complaint to further particularize its factual allegations. Following oral argument on December 11, 2008, this Court granted the cross motion insofar as it seeks leave to amend the complaint, but in an effort to conserve judicial resources, agreed to consider the sufficiency of the amended complaint.

In opposition to the motion to dismiss, plaintiff contends that the words used by defendant BESIGNANO were clearly defamatory and cannot be dismissed as a mere expression of opinion when considered in the context in which they were made. In addition, while defendants claim that the statements are protected by a qualified privilege, plaintiff argues that it would be premature to dismiss on this ground without affording him an opportunity to conduct discovery. Similarly, plaintiff claims that a defendant's personal interests or motives may form the basis for the required showing of "disinterested malevolence", but that discovery is critical to proving this claim, as well.

Defamation has long been recognized as "the making of 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, and to deprive him of their friendly intercourse in society" (Foster v. Churchill, 87 NY2d 744, 751 [citations and internal quotation marks omitted]). The elements of the cause of action 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" (Salvatore v. Kumar, 40 AD3d 560, 563 [internal quotation marks omitted]). The complaint must also allege the time, place and manner of the false statement, and specify to whom it was purportedly made (see Dillon v. City of New York , 261 AD2d 34, 38; Arsenault v. Forquer, 197 AD2d 554).In addition, CPLR 3016(a) requires that in a defamation action, the particular words alleged to be actionable be set forth in the complaint.

Here, it is the opinion of this Court that the amended complaint submitted by plaintiff is sufficient to satisfy the specificity requirements of CPLR 3016(a). In particular, plaintiff clearly details the conversations he had with defendants and the sequence of events which ensued thereafter, as well as the subsequent conversations that defendants had with teachers and parents. It is the further opinion of this Court that the statements attributed to defendant BESIGNANO were not, as a matter of law, mere expressions of opinion, unfavorable assessments or criticisms, but rather could be found to be actionable. Of special relevance in this regard are the statements detailing plaintiff's purported actions towards members of the boys' junior varsity basketball team.

With regard to defendants' claim of a qualified privilege, it well settled that a qualified privilege extends to a "communication made by one person to another upon a subject in which both have an interest" (Liberman v. Gelstein, 80 NY2d 429, 437). The rationale underlying the privilege is that, in the absence of abuse, the flow of information between persons sharing a common interest should not be impeded (see Liberman v. Gelstein, 80 NY2d at 437). However, where a plaintiff can demonstrate that the statements made by the alleged defamer were not made in good faith, but were motivated solely by malice, the protection provided by the qualified privilege will be lost (see Liberman v. Gelstein, 80 NY2d at 437-439).

At bar, defendants claim that the alleged defamatory statements were made in private meetings attended only by defendant BESIGNANO, as a representative of the faculty, MSGR. PADDACK, the principal of the high school, plaintiff, and the athletic director, and were made with the common interest of safeguarding the well-being of the students and maintaining the integrity of the basketball team. Nevertheless, it is the opinion of this Court that the facts alleged by plaintiff are also susceptible to a malicious interpretation as motivated solely by a desire to injure plaintiff, i.e., common-law malice (see Thanasoulis v. National Assn. for the Specialty Foods Trade, 226 AD2d 227, 229). Of particular significance here are the statements attributed to BESIGNANO reflecting hostility towards plaintiff, and the allegations of the former's continuing attempts to [*3]secure statements from third parties (including students) in an effort to demonstrate plaintiff's misconduct.

With regard to the cause of action for prima facie tort, it is well established that "prima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy, and not to provide a catch all' alternative for every cause of action which cannot stand on its [own] legs" (Bassim v. Hassett, 184 AD2d 908, 910). The elements of a prima facie tort are "(1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification ... (4) by an act or series of facts that would otherwise be lawful" Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314, 332). A critical element of the cause of action is the requirement that plaintiff allege "special damages", i.e., specific and measurable losses (see Freihofer v. Hearst Corp., 65 NY2d 135, 143). In addition, it must be alleged that defendant's actions were the product of a "disinterested malevolence" (see Curiano v. Suozzi, 63 NY2d 113).

Here, plaintiff's allegation of special damages in the amended complaint take the form of, e.g., the loss of pay attributable to his dismissal and subsequent inability to obtain substitute employment as a junior varsity basketball coach. Moreover, the detailed allegations of facts are suggestive of defendants' malevolence towards plaintiff and an intention to inflict harm without justification.^[FN2] Accordingly, plaintiff should not be foreclosed at this early juncture from asserting a claim of prima facie tort (see Curiano v. Suozzi, 63 NY2d at 117).Nevertheless, if the cause of action for defamation is proved, the cause of action for prima facie tort will disappear (id.; see Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 NY2d 397, 406).

The amended complaint is therefore legally sufficient.

Finally, defendants' claim that plaintiff has failed to allege any defamatory statements attributable to Msgr. PADDACK is without merit, since the amended complaint contains allegations that both the Monsignor and codefendant BESIGNANO made statements to others regarding, inter alia, plaintiff's alleged inappropriate conduct with students.

Accordingly, it is

ORDERED that defendants' motion to dismiss is denied and the amended complaint annexed to plaintiff's cross motion shall be deemed filed and served; and it is further

ORDERED that defendants have 20 days after the service upon them of a copy of this order with notice of entry within which to serve an amended answer.

E N T E R,

/s/ Philp G. Minardo

J.S.C.

Dated: February 6, 2009