89 A.D.2d 164 | N.Y. App. Div. | 1982
OPINION OF THE COURT
The principal issue on this appeal, which is one of first impression in this State, is whether allegedly libelous “tenant’s statément[s] of complaint” filed by individual tenants with the New York State Division of Housing and Community Renewal pursuant to the provisions of the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4, as amd) and the regulations promulgated thereunder, and allegedly composed by defendant who concededly acted
Park Knoll Associates, a limited partnership and the plaintiff in this defamation action, owns, manages and operates a Westchester apartment complex known as Park Knoll. The defendant, Aphrodite Schmidt, resides at the subject premises and serves as president of Park Knoll Tenants Association, Inc., a not-for-profit corporation which represents Park Knoll tenants.
Plaintiff commenced this action against defendant on or about June 18, 1980. The complaint, which sets forth 10 causes of action for libel, alleges that defendant “designed to libel the plaintiff in its trade and business by falsely accusing it of violating the applicable law and regulations of the State of New York and of the Division of Housing and Community Renewal * * * and further falsely accusing the plaintiff of making perjurious statements to said Division.”
Each cause of action alleges a libel published in March or April, 1980, and sets forth verbatim the communications complained of, which comprise portions of 10 “Tenant’s Statements] of Complaint” filed pursuant to the Emergency Tenant Protection Act of 1974 (ETPA) (L 1974, ch 576, § 4, as amd). The complaint forms, which were furnished by the New York State Division of Housing and Community Renewal (the division), were received by the Office of Rent Administration, the entity designated by the commissioner of the division to administer the ETPA (see Emergency Tenant Protection Regulations, § 3, subd 2, 9 NYCRR 2500.2 [b] [1]).
Each statement was affirmed by a different tenant of the Park Knoll complex. Seven of them are signed by defendant as “[p]repared [b]y” Aphrodite Schmidt. For example,
“The RTP-25 form was represented as approval by your agency of the $390 rent being charged me. Please note that the landlord indicates that the prior tenant’s rent was at $324.16 and that the lease was broken. Accordingly, Mrs. Schmidt advises me that only a 6% vacancy rate adjustment could be applied on the rental amount of the prior tenant’s unexpired term. It would appear that my proper legal regulated rent should be at $349.61 per month. The prior tenant was a Robert Ucci who cannot be located and I ask that his lease and that of the prior tenants since 1974 be provided by the landlord for review. Mrs. Schmidt indicates to me that the prior tenant may have been overcharged, and that this possible circumstance has bearing on the proper base rent to me * * *
“In addition, Mrs. Schmidt advises me that the landlord was covered by insurance to restore the premises to its original condition and these costs cannot be passed on to the tenants * * *
“Mrs. Schmidt also advises me that the landlord has ‘renovated’ certain other 3 room apartments in the Park Knoll complex by replacing original 28 year old equipment in the kitchens and bathrooms and charged $359.50 for said apartments in excess of the allowable legal regulated rent, and that this matter of those tenants’ complaints is pending with your agency.” (Emphasis supplied.)
In six of the statements, the complaining tenant asks that defendant act as his or her representative “in all matters that [the tenant did] not have full knowledge about as a new tenant”, in the event a hearing “is requested by the landlord or deemed necessary”. The statement that forms the basis of the eighth cause of action was “submitted with the assistance of the President of the Park Knoll Tenants Association” and in the tenth, the statement was “submitted with the assistance and preparation of Aphrodite Schmidt”.
In each statement, the complaining tenant makes reference to advice furnished by defendant. While none of the 10
In October, 1980, defendant moved for summary judgment dismissing the complaint on the ground, inter alia, that “the alleged defamatory statements were privileged”. By order dated February 10, 1981, Special Term (Marbach, J.), denied the motion, - observing with regard to defendant’s claim of absolute privilege, that such “argument would have merit if it were the complaining tenants who were sued * * * and the statements contained in the various complaints were the basis [sic] for the action (Studley Inc. v Lefrak, 50 A.D. 2d 162, affd 41 N.Y. 2d 881).” Noting that plaintiff’s action was based upon defendant’s statements to the complaining tenants, which statements were later incorporated into the complaints filed by the tenants, Special Term reasoned that as it was the communications between the tenants and the division that formed the bases of the action, such communications were subject to a qualified, rather than an absolute, privilege. No appeal was taken from this order.
In April, 1981, plaintiff moved for an order of preclusion pursuant to CPLR 3126. Defendant then cross-moved pursuant to CPLR 3211 (subd [a], par 7) to dismiss the complaint for failure to' state a cause of action, or in the alternative, for a protective order. By order dated September 30, 1981, Special Term (Gurahian, J.), inter alia, denied defendant’s cross motion, holding in part that the “subject complaint [met] the requirements of particularity under CPLR rule [3016].”
Initially, we observe that the prior order of Special Term from which no appeal was taken constitutes no impedi
Public policy considerations require that certain defamatory communications are either absolutely or qualifiedly (conditionally) privileged (see Sack, § VI. 1, p 267 et seq.; Prosser, Torts [4th ed], § 114; Restatement, Torts 2d, § 583 et seq.; see, also, 50 Am Jur 2d, Libel and Slander, § 192). “The difference between the two rests in the role of malice. A qualified privilege is * * * available only in the absence of malice, while an absolute privilege, a veritable immunity, is impervious to proof, and therefore to a charge, of malice (Andrews v Gardiner, 224 NY 440, 446)” (Stukuls v State of New York, 42 NY2d 272, 275). Indeed, while generally the defense of privilege must be pleaded in an answer, where communications are absolutely privileged,
The threshold question is whether, for the purposes of this analysis, the statements of complaint are subject to a privilege and, if so, whether it is an absolute or qualified privilege. The former, founded upon public policy considerations favoring free expression, affords the communicant total immunity from suit based upon his particular position or status. The latter, a “ ‘defeasible’ ” privilege (Prosser, Torts [4th ed], § 115), is characterized by a duty on the part of the communicant to make the defamatory statement at the time he did, or by the fact that the communicant has a legitimate interest in doing so on that particular occasion (Sack, §§ VI.1-VI.2, pp 267-268; Restatement, Torts 2d, § 584), and is based upon a public policy “that recognizes that it is desirable that true information be given [when] * * * reasonably necessary [to protect the] actor’s own interests the interests of a third person or certain interests of the public” (Restatement, Torts 2d, § 584, p 243).
In our State, a grant of absolute immunity has been held applicable to statements made in the course of three types of proceedings, namely, legislative, executive and judicial (see Toker v Pollak, 44 NY2d 211, 219; see, also, Sack, § VI.2, p 268; 35 NY Jur, Libel and Slander, § 92; Hallerman, Defamation, Privilege, and the Public Interest: A Study in Priorities, 45 Bklyn L Rev 131, 139-140). However, because a grant of absolute privilege is founded upon public policy considerations and results in complete immunity from suit, the courts have been reluctant to extend its shield to cases where its application is not required by the policy considerations which engendered the privilege (see Stukuls v State of New York, 42 NY2d 272, 277, supra; Andrews v Gardiner, 224 NY 440, 446-447, 448, supra; cf. Laun v Union Elec. Co. of Missouri, 350 Mo 572, 578; cf. Ann., 45 ALR2d 1296, 1299).
Since at least the mid-19th century, the courts of this State have recognized that oral or written communications made in the course of a judicial proceeding are absolutely privileged and thus cannot serve as the basis for an action
The judicial privilege also extends to communications made in the course of proceedings which may be characterized as quasi-judicial. Both the courts of this State and a number of our sister States have recognized that such absolute privilege attaches to communications made during certain administrative proceedings which, in substance, exhibit quasi-judicial attributes (see Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, 165, affd insofar as appealed from 41 NY2d 881, supra).
The Court of Appeals, in discussing the nature of those proceedings in which administrative bodies have exercised a quasi-judicial function, has stated: “In each of these proceedings, as well as others held to be quasi-judicial (see, generally, Defamation — Administrative Proceeding, Ann., 45 ALR2d 1296; 50 Am Jur 2d, Libel and Slander, § 234), the administrative body exercised a quasi-judicial function. A hearing was held at which both parties were entitled to participate. The administrative body was empowered, based upon its findings, to take remedial action, whether it be an award of compensation, disbarment, or revocation of a license” (Toker v Pollak, 44 NY2d 211, 222, supra).
The shield of absolute immunity extends to the proceedings of administrative agencies where such proceedings are adversarial, result in a determination based upon the application of appropriate provisions in the law to the facts and which are susceptible to judicial review (see Kitchner v State of New York, 82 Misc 2d 858; cf. Lipton v Friedman, 2 Misc 2d 165). It attaches to “every step” thereof until final disposition (Prosser, Torts [4th ed], § 114, p 780), including situations in which “voluntary action by the citizen is a preliminary to a statutory proceeding” (1 Seelman, The Law of Libel and Slander in the State of New York [rev ed], 1968 Cumm Supp, p 126). Further, we note that in deciding whether the communications under review should be afforded an absolute privilege, our inquiry must not only consider the particular characteristics of the proceeding in
At bar, the alleged defamatory statements are written upon complaint forms provided by the New York State Division of Housing and Community Renewal, an administrative agency with both adjudicative and rule-making powers, and filed with the Office of Rent Administration, the body designated by the commissioner of the division to administer the ETPA (see 9 NYCRR 2500.1,2500.3 [b] [2]).
The ETPA authorizes municipalities in Nassau, Rock-land and Westchester Counties to declare a housing emergency where the rental vacancy rate in certain accommodations falls below 5% and in such event, to create rent guideline boards which shall establish guideline rates for rental adjustments (see ETPA, §§ 3, 4; 9 NYCRR 2500.8). The division is empowered to consider landlord applications for rental increases based, inter alia, upon submission of an application with the necessary evidence demonstrating a major capital improvement, substantial rehabilitation or hardship (9 NYCRR 2502.4). Should a tenant be of the view that he or she is being charged in excess of the legal regulated rent, he or she may file a complaint with the division. Where a landlord is found by the division, after a reasonable opportunity to be heard, to have collected rent in excess of the regulated rate, the division may assess penalties which may amount to three times the sum of the overcharge for a period not to exceed two years from the date of the complaint, unless the landlord establishes that such overcharge was not willful or attributable to his negligence, in which event the penalty shall constitute the amount of the overcharge. Attorneys’ fees and other reasonable costs may be assessed against the landlord (see 9 NYCRR 2506.1).
A proceeding is initiated before the division by either the landlord or the tenant upon an application for an adjustment or other relief, which application shall be verified or certified by the applicant. The division may also institute a proceeding upon its own initiative (9 NYCRR 2507.1, 2507.2). Notice of such proceeding to the parties affected is mandated (9 NYCRR 2507.3). The regulations provide a
Adversarial and impartial in nature, proceedings before the division may result in a grant of tangible relief to those parties appearing before it. Based upon these factors, and mindful of society’s interest in having tenants speak freely with regard to matters relating to the provisions of the ETPA, we conclude that the statements made in the tenants’ complaints were made in the course of a quasi-judicial proceeding and therefore were absolutely privileged. Having thus concluded, the question becomes whether such immunity should extend to defendant, who, as tenant leader, was allegedly the author of the statements of complaint, and who, while not technically a party to the division proceedings initiated by the tenants’ statements of complaint did have a substantial interest therein based upon her status as tenant representative, and the fact that six of the tenants requested that, in the event of a
Whether one who is not technically a party to a quasi-judicial proceeding, but who has caused a participant to communicate defamatory matter therein, and who is sued based upon such communication within the proceeding, may assert an absolute privilege has been said to “[turn] on the nature of the privilege as one which affords only the actor himself immunity from liability or as one which deprives the communication of the defamatory matter itself of its character as a tortious act. Whether the nature of the absolute privilege afforded to communications in judicial proceedings is of the former or the latter kind depends upon the reasons why the law of defamation permits the privilege, since, as a general proposition, it is a pure question of policy whether to extend a privilege, in any particular type of case, to the initiator of the agent’s act” (Libel and slander: absolute privilege in respect of pleadings or other judicial matters as available to one who is neither a party, an attorney for a party, nor a witness, but who causes the inclusion of the defamatory matter, Ann., 144 ALR 633). A defendant’s capacity to assert such immunity has been said to depend upon “a consideration of other applicable rules of law pertaining to defamation and, more important, whether there are any reasons of public policy justifying an extension of the rule of absolute immunity for * * * defamatory matter in pleadings to those who may have some kind of an interest in the pleadings and the proceedings they involve” (Laun v Union Elec. Co. of Missouri, 350 Mo 572, 580, supra).
We are persuaded that under the facts of this case, including defendant’s particular status, that there are sound, significant, compelling and legitimate policy reasons why the absolute privilege should be extended to this particular defendant (but see Laun v Union Elec. Co. of Missouri, supra).
Our neighboring State New Jersey “recognizes that the immunity which attends judicial proceedings protects both counsel and other representatives who are employed to assist a party in the course of litigation. Middlesex Concrete Products and Excavating Corp. v. Carteret Industrial
Assuming, as plaintiff alleges, that the complaints at issue were authored by defendant in her capacity as tenant representative we hold that they constituted a pertinent part of a quasi-judicial proceeding and were within the absolute immunity afforded statements made therein (cf. Middlesex Concrete Prods. & Excavating Corp. v Carteret Ind. Assn., supra).
The defendant, as president of Park Knoll Tenants Association, held a position consistent with that of many other concerned tenant association leaders throughout this State. Such persons are mostly unpaid, dedicated and energetic individuals who attempt to provide advice and disseminate information to tenants, who are sometimes of
Accordingly, for the reasons stated, defendant’s cross motion should be granted to the extent of dismissing the complaint on the ground that it fails to state a cause of action. We therefore do not reach defendant’s contentions regarding that part of Special Term’s order which denied so
Weinstein, J. P., O’Connor and Thompson, JJ., concur.
Order of the Supreme Court, Westchester County, dated September 30, 1981, reversed, on the law, with $50 costs and disbursements, and defendant’s cross motion is granted to the extent that the complaint is dismissed for failure to state a cause of action. Plaintiff’s motion is denied as academic.
. CPLR 3016, which delineates special pleading requirements in certain actions, provides in pertinent part: “(a) Libel or slander. I:i an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally.”
. See, e.g., Wiener v Weintraub, 22 NY2d 330 (complaints to Bar Association Grievance Committee); Marino v Wallace, 65 AD2d 946 (remarks made during Public Service Commission hearing); Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, affd insofar as appealed from 41 NY2d 881 (affidavit in support of a complaint in a real estate broker license revocation proceeding); Kitchner v State of New York, 82 Misc 2d 858 (unemployment benefit insurance proceeding); Cooke v Manhattan Galleries, NYLJ, July 29,1976, p 5, col 2, mod on other grounds 48 AD2d 793 (complaint to Department of Consumer Affairs); but see Kadish v Dressner, 86 AD2d 622 (conditional privilege only); Rainier's Dairies v Raritan Val. Farms, 19 NJ 552 (petitioner filed with director of milk industry alleging illegal purchase agreement and requesting formal revocation hearing); Parker v Kirkland, 298 Ill App 340 (statements made before board of appeals during proceeding seeking review of capital stock assessment); Robertson v Industrial Ins. Co., 75 So 2d 198 [Fla] (statements in application for revocation of insurance agent’s license); Fenning v S. G. Holding Corp., 47 NJ Super 110 (landlord’s letter responding to tenant’s protest permissively filed with rent control agency); cf. Longo v Tauriello, 201 Misc 35 (landlord’s papers in connection with application to subdivide tenant’s apartment made to Temporary State Housing Rent Commission); see, generally, Libel and slander: privilege