27 A.D.2d 550 | N.Y. App. Div. | 1966
In an action to recover damages for libel and other tortious conduct, defendants appeal from an order of the Supreme Court, Queens County, dated April 12, 1966, and entered in Nassau County April 15,1966, which denied their motion to dismiss the complaint pursuant to CPLR 3211. Order affirmed, with $10 costs and disbursements. Liberally construed, the first cause of action alleges that defendant Robert W. Williams caused a corporation to institute a false, defamatory action against plaintiff, not with the intention of prosecuting it as a lawsuit, but solely for the purpose of ruining plaintiff’s business reputation by widespread publication of the accusations made against plaintiff in that action; and that both defendants accomplished such improper purpose by deliberately and maliciously mailing copies of the defamatory complaint to many others in plaintiff’s trade. In our opinion, such allegations sufficiently plead abuse of process, since they charge the misuse of legal process to accomplish an improper, collateral purpose (Dean v. Kochendorfer, 237 N. Y. 384; Hauser v. Bartow, 273 N. Y. 370, 373—374). Further, if it were assumed arguendo that such allegations do not plead the classic tort of abuse of process, we would nevertheless hold that they sufficiently spell out a cognizable tort for which the law will provide a remedy (see Halio v. Lurie, 15 A D 2d 62; Keller v. Butler, 246 N. Y. 249, 254). The second cause of action, repeating the allegations of the first, is couched in the form of an ordinary libel action. Defendants contend that it is insufficient on its face because their mailing of the complaint to numerous persons in the trade was nothing more than “a fair and true report” of a judicial proceeding, which is protected by section 74 of the Civil Rights Law. We disagree. In our opinion, the protection of that statute does not extend to a case where an action is brought solely for the purpose of ruining a person’s reputation, and the defamatory complaint in that action is then with malice widely circulated by the defamer himself (here, with a codefendant) in order to accomplish such improper purpose. Such publication of the complaint is not “a fair and true report” of a judicial proceeding within the ambit of the statute. Nor is it a publication “ connected with the litigation ” or “ during the course of ” or “ as part of ” a judicial proceeding. On the contrary, it is an excessive unconnected publication which is not cloaked with either a statutory or a common-law privilege (see Seltzer v. Fields, 20 A D 2d 60, 63-64, affd. 14 N Y 2d 624). Defendants cite Lewis v. Chemical Foundation (262 N. Y. 489) and Oglesby v. Cranwell (250 App. Div. 720) as authority