You are here: / / “Pertinent to Litigation” Privilege for Statements Made by...
, ,

“Pertinent to Litigation” Privilege for Statements Made by an Attorney Does Not Apply If the Relevant Litigation Is a “Sham”—Here Sufficient “Sham Litigation” Allegations Were Made—Slander Per Se Cause of Action Should Not Have Been Dismissed

In finding plaintiff had stated a cause of action for slander per se, the First Department explained that the privilege for statements made by an attorney which pertain to on-going litigation does not apply if the litigation is a “sham.”  The plaintiff, an attorney, sued Finkelstein, also an attorney, for statements alleged to have been made by Finkelstein to plaintiff’s former client, Harrison. Plaintiff alleged that Finkelstein told Harrison plaintiff had taken Harrison’s money and that Finkelstein was the source of the false allegations in Harrison’s complaint against plaintiff.  Disagreeing with Supreme Court, the First Department held that the complaint stated a cause of action because the complaint sufficiently alleged the lawsuit brought by Harrison was a “sham” to which the “statements pertinent to litigation” privilege would not apply:

… [A] statement that is pertinent to litigation is absolutely privileged and cannot form the basis of a defamation action. That principal of law was first stated by the Court of Appeals in Youmans v Smith (153 NY 214, 219 [1897]), and was recently reaffirmed by the Court in Front, Inc. v Khalil (24 NY3d 713 [2015]) . This Court has held that, where the privilege is invoked, “any doubts are to be resolved in favor of pertinence” … . Further, the test to determine whether a statement is pertinent to litigation is ” extremely liberal'” …, such that the offending statement, to be actionable, must have been “outrageously out of context” … .

This Court has recognized, however, that the privilege is capable of abuse and will not be conferred where the underlying lawsuit was a sham action brought solely to defame the defendant … , in which this Court declined to dismiss a defamation claim based on the pertinency privilege where the context in which the allegedly offending statement was made was a litigation that the plaintiffs filed but never prosecuted. The existence of this “sham litigation” exception has been confirmed (but not applied) in other cases in this Department… . Flomenhaft v Finkelstein, 2015 NY Slip Op 03468, 1st Dept 4-28-15

 

You might also like
Money Paid Into Court in Conjunction with Stay Pending Appeal Does Not Stop Accruing of Interest Until Prevailing Party is Paid
THE EXISTENCE OF A HANDRAIL ON THE LEFT OF THE STAIRS DID NOT WARRANT GRANTING SUMMARY JUDGMENT TO DEFENDANTS IN THIS SLIP AND FALL CASE WHERE THERE WAS NO HANDRAIL ON THE RIGHT (FIRST DEPT).
ALTHOUGH VACATUR OF A DEFAULT JUDGMENT WAS NOT AVAILABLE UNDER CPLR 5015, VACATUR WAS AVAILABLE UNDER CPLR 317.
FLAWED JURY INSTRUCTIONS ON THE JUSTIFICATION DEFENSE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.
THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED.
DEFENDANT’S MOTION TO COMPEL PLAINTIFF, WHO SUED UNDER THE NAME MARGARET DOE, TO AMEND THE CAPTION TO INCLUDE HER LEGAL NAME SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF PRESENTED EVIDENCE SUING UNDER HER OWN NAME WOULD HAVE SEVERE MENTAL-HEALTH CONSEQUENCES (FIRST DEPT).
BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT).
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF FELL THROUGH AN OPENING COVERED BY A PIECE OF PARTICLE BOARD (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Unemployment Insurance Appeal Board Has Jurisdiction Over Employment Within... Attorney-Defendants Demonstrated the Dismissal of the Complaint Was an Error...