Hillgardner v Chambi

[*1] Hillgardner v Chambi 2012 NY Slip Op 51343(U) Decided on July 12, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 12, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-1602 Q C.

Thomas J. Hillgardner, Respondent,

against

Bahia Mehmet Bin Chambi and BADISSE MEHMET, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered April 5, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of defendants' motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (7) and granted the branch of plaintiff's cross motion seeking to dismiss defendants' first affirmative defense.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff, an attorney, commenced this libel action to recover the sum of $25,000 from defendants based on allegedly defamatory statements made by defendants in a letter to the New York City Loft Board and by defendant Badisse Mehmet in the course of an action he had brought against plaintiff in the Supreme Court. By order entered April 5, 2011, the Civil Court, as relevant to this appeal, denied the branch of defendants' motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (7) and granted the branch of plaintiff's cross motion seeking to dismiss defendants' first affirmative defense of absolute privilege. On appeal, defendants argue that the order should be reversed because their statements were absolutely privileged, having been made by them in the course of an action in Supreme Court and a [*2]quasi-judicial proceeding before the Loft Board.

Statements made in the course of a judicial proceeding or a quasi-judicial proceeding will not be afforded the protection of an absolute privilege if they are not pertinent to those proceedings (see generally Martirano v Frost, 25 NY2d 505, 507 [1969]; Youmans v Smith, 153 NY 214 [1897]; Fabrizio v Spencer, 248 AD2d 351 [1998]; Allan & Allan Arts v Rosenblum, 201 AD2d 136 [1994]; Grasso v Mathew, 164 AD2d 476 [1991]). "When remarks during judicial proceedings cannot be deemed relevant despite every liberality of interpretation, the absolute privilege is lost" (Martirano v Frost, 25 NY2d at 510; Youmans v Smith, 153 NY 214). In the instant matter, the alleged defamatory statements made by defendants, although they were made in the course of an action in Supreme Court and a quasi-judicial proceeding before the New York City Loft Board, were not pertinent to the respective proceedings and therefore were not absolutely privileged. Thus, the Civil Court properly granted the branch of plaintiff's cross motion seeking to dismiss defendants' first affirmative defense of absolute privilege and properly denied the branch of defendants' motion seeking to dismiss the complaint for failure to state a cause of action on the ground that the statements were absolutely privileged.

Defendants' remaining contentions are without merit.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 12, 2012