
    Justina Kilcoin, Respondent, v Oleh M. Wolansky, Appellant.
    Argued January 14, 1981;
    decided February 17, 1981
    
      APPEARANCES OF COUNSEL
    
      Bernard Kessler for appellant.
    
      Robert Abrams, Attorney-General (Thomas P. Dorsey and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

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 AD2d 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 NY2d 272, 278-279; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56, 61.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.  