Absolute Privilege

An absolute privilege protects an attorney who made statements about a non-party in a divorce from defamation, according to a decision of the New York Appellate Division for the Second Judicial Department

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.

Defendant appealed the denial of her motion to dismiss

A statement made at any stage of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, regardless of the motive with which it was made, “is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation” (Martirano v Frost, 25 NY2d 505, 507; see Front, Inc. v Khalil, 24 NY3d 713, 718; Weinstock v Sanders, 144 AD3d 1019, 1020; Rabiea v Stein, 69 AD3d 700, 700). “The test of pertinency to the litigation is extremely liberal, so as to embrace anything that may possibly or plausibly be relevant or pertinent” (Weinstock v Sanders, 144 AD3d at 1020; see Grasso v Mathew, 164 AD2d 476, 479; Klein v McGauley, 29 AD2d 418, 420), and “any doubt should be resolved in favor of upholding the privilege” (Dachowitz v Kranis, 61 AD2d 783, 783; see Grasso v Mathew, 164 AD2d at 479).

Here, under 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 (see Ifantides v Wisniewski, 181 AD3d 575, 576; Weinstock v Sanders, 144 AD3d at 1021; Rufeh v Schwartz, 50 AD3d 1002, 1004; cf. Gugliotta v Wilson, 168 AD3d 817, 819). 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 (Martirano v Frost, 25 NY2d at 508).

Accordingly, since Kaplan’s alleged defamatory statement is protected by the absolute privilege for statements made in a judicial proceeding, the Supreme Court should have granted that branch of her motion which was pursuant to CPLR 3211(a)(7) to dismiss the first and second causes of action insofar as asserted against her.

(Mike Frisch)