ACOSTA v. VATAJ

It was error for IAS to convert defendants' motion to dismiss the first cause of action for defamation (CPLR 3211 [a] [7]) into one for summary judgment under CPLR 3212 without any notice to the parties (Four Seasons Hotels v Vinnik, 127 A.D.2d 310). Such a course was particularly prejudicial to plaintiff who was deprived of any opportunity to submit a competent affidavit in support of the general allegations of malice in the pleading which were facially sufficient at this stage (Whelehan v Yazback, 84 A.D.2d 673, 674).

It was also error to give conclusive effect to defendants' position of qualified privilege before any affirmative defense to that effect was raised in a responsive pleading (Whelehan v Yazback, supra). It may be noted that a qualified privilege defense usually presents a jury question as to whether defendants' conduct was cloaked with, or transcended, the protective mantle of the privilege (Schulman v Anderson Russell Kill Olick, 117 Misc.2d 162, 169).

The second cause of action making exclusive reference to punitive damages was properly dismissed (Kallman v Wolf Corp., 25 A.D.2d 506).

Concur — Rosenberger, J.P., Wallach, Asch, Kassal and Smith, JJ.