The following documents were read in connection with the defendant's motion for summary judgment pursuant to CPLR 3212:

Defendant's Notice of Motion, Affirmation, Exhibits1-20

Plaintiff's Memo of Law in Opposition, Exhibits21-26

Defendant's Reply Affirmation27

The plaintiff, a member of the Tarrytown Volunteer Ambulance Corp. (hereinafter TVAC), commenced this action against the defendant, a psychotherapist, to recover damages for libel. The plaintiff contends that the defendant defamed him, on or about September 27, 2011, in a written correspondence to TVAC's Board of Directors opining, on the basis of interviews she conducted with three female members of TVAC, that "the plaintiff has been consistently inappropriate" with members of TVAC, "has a problem with alcohol," and "appears to be unable to control his behavior." The plaintiff also asserted a cause of action sounding in conspiracy to commit libel.

The defendant now moves for summary judgment dismissing the complaint on the grounds that (1) the letter contains protected statements of opinion, (2) the statements do not constitute libel per se, and (3) she is entitled to the defense of qualified privilege. The defendant further contends that the second cause of action for conspiracy to commit libel must be dismissed insofar as civil conspiracy is not recognized as an independent tort.

In support of her motion, the defendant relies upon, among other things, a copy of the letter sent to TVAC, and the deposition transcripts of herself, the plaintiff, and non-parties Joan Dobson, Susan Croll, and Daryl Johnson. Joan Dobson testified that in 2011 she was the chairman of the TVAC Board of Directors (see Dobson Deposition at 15). Dobson had received various complaints about inappropriate behavior by the plaintiff from members of TVAC (id. at 25-27). The complaints involved non-consensual contact such as rubbing a person's shoulders or feet (id. at 26, 78), touching the breast and thigh of a female coworker (see Croll Deposition at 52), and attempting to kiss coworkers on the mouth (see Johnson Deposition at 43). The complained-of conduct frequently coincided with alcohol use (see Croll Deposition at 52; Savage Deposition at 28). Dobson assigned Shelley Robinson, a member of the TVAC Board of Directors, to investigate and address the complaints against the plaintiff (see Dobson Deposition at 54; Savage Deposition at 53).

In or about September 2011, Robinson contacted the defendant requesting that she interview three women members of TVAC in connection with the issues surrounding the plaintiff, and further requested that the defendant write a letter to the Board of Directors regarding the result of the interviews (see Savage Deposition at 11). The defendant maintains an active psychotherapy practice in Sleepy Hollow, New York, and holds degrees and certifications in the counseling field (id. at 7). The defendant testified that she understood Robinson's request to interview the TVAC members was "in [her] capacity as a psychotherapist" (id. at 11). Additionally, she felt it was her civic duty to report on the matter to the TVAC board (id. at 49-50). Accordingly, the defendant interviewed the three women, wrote the report which is the subject of this litigation, and mailed it to Robinson (id. at 12). In the report, which is addressed to TVAC, she opines:

After these conversations [with the three female TVAC members], I am forced to conclude that [the defendant] has been consistently inappropriate with all of them, and with other members of the Ambulance as well. Unwanted touching, invasion of personal space, and refusal to obey suggestions that he reform his behavior are reported by all three. He has shown pictures which were offensive, and taken pictures without permission of women in the corps. It also seems clear that he has a problem [*3]with alcohol which need to be addressed by the Ambulance Corps.

I suggest that the Corps draw up and put in place a Sexual Harassment Policy, and also form a committee to address complaints when they are lodged, so that members feel that they are heard when they have a problem. I also suggest that [the defendant] not be reinstated, as he appears to be unable to control his behavior despite repeated reprimands.

In opposition, the plaintiff contends that the defendant's letter consisted of factual information, and thus, is actionable. Further, the plaintiff argues that since the defendant was never a member or involved in the operation of TVAC, she is not entitled to the affirmative defense of qualified privilege. Lastly, the plaintiff argues that his conspiracy cause of action should not be dismissed insofar as he has demonstrated an underlying viable tort, and evidence that the defendant and Robinson entered into an agreement and committed an overt act in furtherance of their agreement to commit defamation against him.

The defendant has established her prima facie entitlement to judgment as a matter of law dismissing the complaint in its entirety (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Specifically, the defendant demonstrated, prima facie, that her statements are protected under the qualified "common interest" privilege. "[A] qualified privilege . . . arises when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or social duty to speak, and the communication is made to a person having a corresponding interest or duty" (Paskiewicz v NAACP, 216 AD2d 550, 551 [2d Dept 1995] see Grier v Johnson, 232 AD2d 846 [3d Dept 1996]). Here, the defendant had an interest in the subject of the communication, as well as a legal, moral, and social duty to investigate and report on the complaints made regarding the plaintiff's alleged behavior. Her services were requested by a member of the TVAC Board of Directors who had been delegated the task of investigating the complaints. Her statements on this subject to the TVAC Board are entitled to the qualified privilege insofar as the board shared a corresponding duty to address the complaints.

"Once a qualified privilege is shown to exist, the burden of proof shifts to the plaintiff to offer evidentiary facts to establish that the communication was made in bad faith and was motivated solely by malice" (Paskiewicz v NAACP, 216 AD2d at 551). In opposition, the plaintiff fails to raise an issue of fact as to whether the alleged defamatory statements were made with malice or with a high degree of awareness of their potential falsity (id. at 848 ["Under this standard, plaintiff must demonstrate that the statements were made with a high degree of awareness of their probable falsity"]). Aside from denying the accusations, the plaintiff does not offer any proof that the defendant was aware of or knew that what she reported may be false. [*4]

The common interest privilege stems from an important public policy to encourage the free flow of information in cases such as this. Organizations who receive complaints of inappropriate conduct occurring anywhere within their ranks have a duty to investigate those complaints, determine their accuracy, and take affirmative steps to redress the situation. As a society, we demand nothing less. When investigating a claim of misconduct, in order to correct the immediate situation and make institutional changes to prevent future harm, an organization must be permitted to seek the assistance of an independent investigator or expert, such as the defendant psychotherapist. While the Court notes that the plaintiff claims he has been falsely accused of misconduct, an action for libel under the circumstances presented here is not the proper forum to vet these allegations. To permit the plaintiff to maintain the action at bar absent any showing of malice would deter professionals such as the defendant from performing an important public function.

Accordingly, the cause of action to recover money damages for libel is dismissed.

Moreover, the cause of action sounding in conspiracy must also be dismissed insofar as "New York does not recognize an independent tort to recover damages for conspiracy" (Red Cap Valet, Ltd., v Hotel Nikko (USA), Inc., 273 AD2d 289, 290 [2d Dept 2000]).

Based upon the foregoing, it is hereby

ORDERED that the defendant's motion for summary judgment dismissing the complaint is granted, and the action is dismissed; and it is further

ORDERED that all other relief requested and not decided herein is denied.

This constitutes the decision and order of the Court.

Dated: White Plains, New York

March 26, 2014

HON. FRANCESCA E. CONNOLLY, J.S.C.