The Second Department determined the defendant-attorney's motion to dismiss the defamation complaint was properly dismissed for failure to state a cause of action. The allegedly defamatory statements were made in an affidavit submitted to the court and concerned the will at the center of the proceedings. The statements, therefore, were absolutely privileged:
An otherwise defamatory statement may be “privileged” and thus not actionable … . Insofar as is relevant herein, an absolute privilege is accorded statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, provided that the statements may be considered in some way “pertinent” to the issue in the proceeding … . “The test of pertinency [to the litigation] is extremely liberal so as to embrace [ ] anything that may possibly or plausibly be relevant or pertinent'” … . This privilege applies to all statements made in or out of court and regardless of the motive for which they were made … .
Here, the complaint alleges that the defendant, who was counsel for the executor in a probate proceeding, made allegedly defamatory statements in an affirmation in support of a motion in that proceeding to compel a continued examination pursuant to Surrogate's Court Procedure Act § 1404. The statements concerned the very subject of the probate proceeding, the contested last Will and Testament of the decedent. Therefore, the subject statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action … . Brady v Gaudelli, 2016 NY Slip Op 01793, 2nd Dept 3-16-16
ATTORNEYS (DEFAMATION, STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)/DEFAMATION (STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)/PRIVILEGE (ATTORNEYS, STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)