61 A.D.2d 783 | N.Y. App. Div. | 1978
In an action, inter alia, to recover damages for libel, plaintiffs appeal from an order of the Supreme Court, Kings County, entered May 17, 1977, which, upon treating defendant’s motion to dismiss the complaint for failure to state a cause of action as one for summary judgment, granted the motion and dismissed the complaint. Order reversed, on the law, with $50 costs and disbursements, and motion denied. Defendant’s time to answer is extended until 20 days after entry of the order to be made hereon. Plaintiffs-appellants, Seyma Dachowitz and her husband, Rabbi Pincus Dachowitz, brought this action to recover damages from defendant-respondent Jack Kranis, an attorney, for his having asserted, in an affidavit submitted in a judicial proceeding, that the plaintiff wife had been convicted of crimes in both the Federal and State courts. The defendant, claiming his statements were absolutely privileged, was granted summary judgment and the complaint was dismissed. The alleged libel was made by Kranis in an action pending in the Civil Court of the City of New York. In that action, Kranis sued, among others, the plaintiff wife and a realty corporation in which she was an officer, to collect a legal fee for services he allegedly rendered on their behalf. After the granting of a motion to dismiss Kranis’ action on the ground that it was time-barred, he moved to reargue. In his affidavit on reargument, he made the following statement: "That I was first retained by the Defendants, which include the same Seyma (Sam) Dachowitz who was convicted in Federal and State Courts for various improprieties as the accountant for Bernard Bergmann [sic], the nursing home magnate”. In granting summary judgment to the defendant and dismissing the complaint, Special Term accepted defendant’s contention that the basis for his having made the statement was to impeach and reflect upon the credibility of the adversary party. Therefore, reasoned Special Term, the statement was at least possibly pertinent and the defendant had established on the record the defense of absolute privilege with respect to the libel causes of action. We respectfully disagree with Special Term’s analysis and with its ultimate conclusion. We agree with Special Term and the dissenter herein that an absolute privilege attaches to an oral or written statement made in a judicial proceeding which is pertinent to the proceeding and that the term "pertinent” has been liberally construed by the courts to attach to any statement that may possibly be or become material or pertinent (Andrews v Gardiner, 224 NY 440, 441; People ex rel. Bensky v Warden, 258 NY 55, 59; Martirano v Frost, 25 NY2d 505, 507). We also agree that the barest rationality, divorced from any palpable or pragmatic degree of probability, suffices, and that any doubt should be resolved in favor of upholding the privilege (Seltzer v Fields, 20 AD2d 60, 62-63, affd 14 NY2d 624; Klein v Walston & Co., 41 Misc 2d 379, affd 27 AD2d 988). It is also true that a statement made in a judicial proceeding accusing an opposing party of having been convicted of a crime may, in a given case, be deemed privileged on the ground that it was made to impeach the credibility of that party (Piccini v Myers, 9 Misc 2d 169). However, after a thorough perusal of the four corners of the papers submitted by the parties in this action, we are of