
    First Department,
    April, 1979
    (April 3, 1979)
    Harold Glantz, Appellant, v Nicholas Scoppetta, Individually and as Commissioner of Investigations of the City of New York, Respondent.
   Order, Supreme Court, New York County, entered December 6, 1977, affirmed, without costs. The plaintiff contends that he was defamed by statements in a letter written by the defendant, as Commissioner of Investigations of the City of New York, in reply to an inquiry by another city official with respect to the plaintiff’s background. The defendant acted in his official capacity, and therefore, he has a qualified privilege. (Toker v Pollak, 44 NY2d 211.) Accordingly, the burden of showing that the privilege was negated by malicious action is upon the plaintiff. Dismissal of the complaint pursuant to CPLR 3211 (subd [a], par 7) was unwarranted. However, the plaintiff has not shown any triable issues of fact as to malice, and therefore summary judgment dismissing the complaint pursuant to CPLR 3212 was proper. Concur—Murphy, P. J., Kupferman, Sullivan and Markewich, JJ.  