Wednesday, March 23, 2016

Absolute privilege as to statements made in a judicial proceeding.

Practice point:  The Appellate Division affirmed the granting of the motion to dismiss the complaint which 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 to compel a continued examination pursuant to Surrogate's Court Procedure Act § 1404. The statements concerned the very subject of the probate proceeding, namely, the contested last will. Therefore, the statements were absolutely privileged as a matter of law, and cannot be the basis for a defamation action.

Student note:  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 are n some way pertinent to the issue in the proceeding . The pertinency standard is extremely liberal and extends to anything that may possibly or even plausibly be relevant.  The privilege attaches to all statements made in or out of court,  regardless of the motive for which they were made.

Case:  Brady v. Gaudelli, NY Slip 01793 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A court's sua sponte dismissal of a claim.