States Military Academy, and defendants themselves offer an exhibit that states that the "fraternal activities" of West Point graduates are left, not to AOG, but to various local West Point societies and clubs. Defendants' Cross-Motion for Dismissal and/or Summary Judgment, Ex.1 at 2. Furthermore, while tax-exempt status alone is insufficient to define an organization as private, see Baptiste v. Cavendish Club, Inc., 670 F. Supp. 108, 109 (S.D.N.Y. 1987), here in any case the AOG's tax-exempt status was granted, not because of the private nature of the organization, but because the AOG was "so closely integrated with the United States Military Academy that [it is] entitled to exemption from Federal income tax." Def. Ex. 1, supra, at 2. Finally, the members of AOG have no control over the membership pool, which is a touchstone of a bona fide private club. See Equal Employment Opportunity Comm'n v. Chicago Club, 86 F.3d 1423, 1436 (7th Cir. 1996).
Turning to the state law claims, while both sides have alleged claims of "prima facie tort" arising from their adversaries' alleged misconduct in this controversy, neither side has adduced the sine qua non of such a claim, i.e. proof from which a reasonable juror could find that "disinterested malevolence" was the sole motivation for the alleged misconduct. See Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983). Consequently, both such claims must be dismissed.
As to plaintiff's claim that defendant Hudgins breached his fiduciary duty by misusing financial information he obtained in his capacity as a member of the board of the West Point Federal Credit Union to discriminate against Willson at AOG, plaintiff's only proof, apart from vague and conclusory allegations, is some brief and wholly inadmissible hearsay. See Affidavit of Daniel Willson in Opposition to Defendants' Motion for Partial Summary Judgment and/or Dismissal at P 16. Thus, summary judgment must be granted on this claim.
On the other hand, defendants' counterclaim against Willson for slander based on various statements made to newspaper reporters survives summary judgment. While Willson contends that these statements were privileged under both the common law and New York statutory law, see N. Y. Civ. Rights Law § 74, the common law privilege applies only to statements made "during the course of judicial proceedings," Bridge C.A.T. Scan Assoc. v. Ohio Nuclear, 608 F. Supp. 1187, 1194 (S.D.N.Y.1985) (applying New York law), while the statements here were allegedly made in a press conference in plaintiff attorney's office. As to the statutory privilege, while "New York courts have extended the privilege to comments made by attorneys to the press in connection with the representation of their clients. . . . the privilege does not extend, however, to parties who maliciously institute a proceeding alleging false and defamatory charges and publicize them in the press." McNally v. Yarnall, 764 F. Supp. 853, 855 (S.D.N.Y. 1991). Here, AOG's evidence that the underlying suit was purposefully brought by plaintiffs with malice, while thin, is sufficient to defeat summary judgment. See Bridge C.A.T. Scan, 608 F. Supp. at 1195.
In summary: (i) defendant West Point Federal Credit Union is dismissed from this action on consent; (ii) summary judgment is granted to defendant Hudgins on both claims against him, to defendant AOG as to the claims of plaintiff Donna Powers-Willson, and to plaintiff Daniel Willson on defendants' prima facie tort claim; and (iii) all other motions are denied. Trial of the remaining claims, consisting of Willson's ADA claim against AOG and AOG's slander claim against Willson, will commence with jury selection on March 3, 1997 at 9:00 a.m.
JED S. RAKOFF, U.S.D.J.
DATED: White Plains, New York
November 26, 1996.