49 Misc. 2d 1016 | N.Y. Sup. Ct. | 1966
Defendants move to dismiss the complaint on the grounds that (1) no cause of action is stated, (2) section 74 of the Civil Rights Law bars the prosecution of the action, and (3) the defense is founded upon documentary evidence.
On November 4, 1965 the summons and complaint in the action entitled Universal Oven Company, Incorporated v. Richard Williams, Irwin Elliott and George White (hereinafter referred to as the “Universal action ”) was filed in the office of the Clerk of the County of New York. The complaint therein alleged that Richard H. Williams, the plaintiff herein, conspired with others to misappropriate and misuse plaintiff’s trade secrets and assets. The complaint in the instant action alleges that on November 12,1965 defendant Robert W. Williams, president of Universal Oven Company, and defendant Victor C. McCuaig, Jr., a director of the corporation, had copies of the summons and complaint in the Universal action printed and circulated these copies to members of the trade. The copies were accompanied by a cover letter signed by Mrs. Harry R. Williams, chairman of the board of directors, stating: “ We enclose for your information a copy of the summons and complaint on file in the Office of the Clerk of the County of New York in our suit against former employees and consultants of the Universal Oven Company.”
The second cause of action sounds in traditional libel.
It is a general rule that no action will lie for defamatory statements contained in any document used in the course of a judicial proceeding and which are pertinent thereto. (Youmans v. Smith, 153 N. Y. 214.) Thus, it has been held that where the alleged defamatory statements were not “ clearly impertinent or beyond the scope of the issues involved ” (Spieler v. Gottesman, 12 A D 2d 894, affd. 11 N Y 2d 815) or “may possibly be pertinent ” (Andrews v. Gardiner, 224 N. Y. 440), they are absolutely privileged. ‘ ‘ A corollary of the pertinency rule is that the absolute privilege is afforded only to those publications made ‘ during the course of ’ or, stated differently, ‘ as part of ’, the judicial proceeding.” (Seltzer v. Fields, 20 A D 2d 60, 63, affd. 14 N Y 2d 624.)
In the Seltzer case the plaintiff stated in his brief that the complaint in the previous action (p. 64) “was left indiscriminately in mail boxes, shoved under doors and otherwise broadcast for the purpose of publication, but not for the prosecution of the action.” The court stated that “communications unconnected with the judicial proceeding are not cloaked with the absolute privilege (Burlingame v. Burlingame, 8 Cow. 141, 145; Note, Developments in the Law, Defamation, 69 Harv. L. Rev. 875, 922-924; see Prosser, Torts [2d ed.], pp. 610-611).” (See Owens v. Avery, N. Y. L. J., Aug. 13, 1964, p. 10, col. 6, affd. 23 A D 2d 722.) However, the court found that the allegations of unconnected publication were not sufficiently definite or informative and dismissed the complaint without prejudice to the institution of a new action, stating (p. 64) that “plaintiff accountant may, perhaps, be able to allege and prove a cause or causes of action based upon some unconnected publications.” The complaint in the instant case is sufficiently informative (CPLR 3016, subd. [a]; cf. Wesson v. Dullzell, 8 A D 2d 597) and it is the opinion of this court that the complaint states a cause of action.