MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs
Examination of the record discloses that, as the Appellate Division found, "the plaintiff has failed to carry her burden of laying bare sufficient evidence to demonstrate a triable issue of fact on the question of malice" ( 75 A.D.2d 1, 13). Moreover, the uncontroverted facts demonstrate that the acts of which plaintiff complains were well within the embrace of the defendant's statutory obligation to see "that there is humane treatment of the patients at his facility and [to] investigate every case of alleged patient abuse or mistreatment" (Mental Hygiene Law, § 13.21, subd [b]). It therefore becomes unnecessary to decide whether the privilege that defendant enjoyed was a qualified or absolute one for, by either standard, plaintiff failed to set out a case. (See Stukuls v State of New York, 42 N.Y.2d 272, 278-279; Shapiro v Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 61.)
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, in a memorandum.