AN ATTORNEY’S REFERENCE IN AN EMAIL TO A NONPARTY AS A “WIFE BEATER” WAS ABSOLUTELY PRIVILEGED AS PERTINENT TO THE DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a statement in an email written by an attorney in a divorce action, referring to plaintiff as a wife beater, was pertinent to the divorce action and was absolutely privileged:

The defendant Dina S. Kaplan is an attorney who represented the defendant Eric Dorfman in a divorce action (hereinafter the divorce action). Kaplan allegedly represented to the court in the divorce action, including court personnel, that the plaintiff, an attorney and a nonparty to the divorce action, was the boyfriend of Dorfman’s wife. In an email exchange between Kaplan and Herbert Adler, an attorney representing Dorfman’s wife in the divorce action, Kaplan allegedly made a defamatory statement about the plaintiff, referring to him as a “wife beater . . . who is in criminal prosecution.” In addition to Adler, the email was sent to court personnel and other attorneys. * * *

… [U]nder the extremely liberal test of pertinency, Kaplan’s statement allegedly referring to the plaintiff as a “wife beater . . . who is in criminal prosecution” was pertinent to the divorce action and, thus, is absolutely privileged. The email exchange between Kaplan and Adler was initially focused on a dispute over Dorfman’s financial ability to pay his wife maintenance and child support. The conversation turned, however, to the behavior of the parties to the divorce action while caring for their children, and Kaplan’s statement that the plaintiff is a “wife beater . . . who is in criminal prosecution” was responsive and therefore relevant to the issue of the parties’ behavior … . Under the circumstances, it cannot be said that the statement was “so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” the plaintiff, who was not among the participants in the conversation, was not otherwise mentioned in the email exchange, and was not even directly identified in the statement … . Davidoff v Kaplan, 2023 NY Slip Op 03450, Second Dept 6-28-23

Practice Point: If a defamatory statement made by a divorce attorney is pertinent to the divorce action, the statement is absolutely privileged.