## Facts

- Dean Mihlovan sued Elena Grozavu and others for defamation.
- He alleged defendants made false statements about him during meetings concerning church elections and related internal church affairs.
- The complaint alleged the statements were made maliciously.

## Issues

1. Whether a court may treat a CPLR 3211(a)(7) motion to dismiss as a CPLR 3212 summary judgment motion without giving the parties adequate notice under CPLR 3211(c).
2. Whether a defamation complaint alleging malicious statements made in a setting arguably subject to qualified privilege states a cause of action sufficient to survive dismissal under CPLR 3211(a)(7).

## Decision

- The Court of Appeals reversed the Appellate Division and reinstated the complaint.
- The Appellate Division erred by treating the pre-answer CPLR 3211(a)(7) motion as a summary judgment disposition without CPLR 3211(c) notice.
- Reading the pleading liberally, the complaint stated a defamation claim because allegations of malice, if proven, could defeat any qualified privilege applicable to church-election communications.

## Legal Principles

- A CPLR 3211(a)(7) motion may be converted to summary judgment under CPLR 3211(c) only upon adequate notice to the parties; the purpose is to allow both sides to make an evidentiary record appropriate for summary judgment.
- A party’s unilateral attempt to obtain summary judgment or submit evidentiary material on a CPLR 3211(a)(7) motion does not, by itself, supply the “adequate notice” required by CPLR 3211(c).
- On a CPLR 3211(a)(7) motion, the pleading is construed liberally and given the plaintiff the benefit of favorable inferences.
- Qualified privilege may protect statements made fairly in the discharge of a public or private duty, or in matters implicating the speaker’s interest.
- Allegations that purportedly privileged defamatory statements were made with malice are sufficient at the pleading stage to allow the claim to proceed, because malice can defeat the qualified privilege.

## Conclusion

The Court of Appeals held that appellate courts may not convert a CPLR 3211(a)(7) dismissal motion into a summary judgment disposition without CPLR 3211(c) notice, and that a defamation complaint alleging malice can survive a motion to dismiss even where the statements are arguably subject to a qualified privilege.


Mihlovan v. Grozavu, 72 N.Y.2d 506 (N.Y. 1988)