Mancini v. Marine Midland Bank, N. A.
185 A.D.2d 682
N.Y. App. Div.
1992
Check Treatment

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants’ motion for summary judgment dismissing plaintiffs complaint. Contrary to plaintiffs assertions, we conclude that the statement contained in the information subpoena mailed to plaintiffs employer is not libelous per se (see, Wilson v Merrill Lynch, Pierce, Fenner & Smith, 111 AD2d 807, affd 66 NY2d 988; 43 NY Jur 2d, Defamation and Privacy, §§ 7, 8), and, therefore, the second, fourth and sixth causes of action were correctly dismissed. Moreover, the statements contained in the information subpoena were absolutely privileged because they were made in the course of a judicial proceeding in which plaintiff was a named party and were material and pertinent to the litigation (see, CPLR 5223; Baratta v Hubbard, 136 AD2d 467, 468-469; Klein v McGauley, 29 AD2d 418, 420; Cooper v Stone, 14 AD2d 814; Schneider v Sachs Quality Stores, 14 Misc 2d 582, 583). Additionally, the circumstance that the information subpoena issued in the proceeding was affected by mistaken identity does not "deprive the legal process of that privilege” (Schneider v Sachs Quality Stores, supra, at 584).

Plaintiffs remaining causes of action, which seek recovery for the infliction of emotional distress due to defendants’ alleged gross negligence, also properly were dismissed. Plaintiff failed to offer any evidence that defendants were guilty of conduct " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303). (Appeal from Order of Supreme Court, Erie County, Flaherty, J.—Summary Judgment.) Present—Callahan, J. P., Green, Lawton, Boehm and Davis, JJ.