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BARDEY v. BROOKE-HITCHING

191 A.D.2d 243 (1993)

595 N.Y.S.2d 4

Robert Bardey, Respondent, v. Harley Brooke-Hitching, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

March 11, 1993

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 A.D.2d 36, 42, lv dismissed 69 N.Y.2d 984), and we find that one does. As such, it is incumbent upon plaintiff to demonstrate malice (see, Liberman v Gelstein, 80 N.Y.2d 429; Wright v Johnson,

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