Bardey v. Brooke-Hitching

—Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 13, 1992, which denied defendant’s motion for summary judgment dismissing the complaint and plaintiff’s cross motion for sanctions, unanimously affirmed, without costs.

Where, as here, there is no dispute as to the facts, it is for the court, not the jury, to decide whether a qualified privilege exists (O’Neil v Peekskill Faculty Assn., 120 AD2d 36, 42, lv dismissed 69 NY2d 984), and we find that one does. As such, it is incumbent upon plaintiff to demonstrate malice (see, Liberman v Gelstein, 80 NY2d 429; Wright v…