Rabiea v Stein

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[*1] Rabiea v Stein 2008 NY Slip Op 52567(U) [21 Misc 3d 1149(A)] Decided on December 23, 2008 Supreme Court, Nassau County Palmieri, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2008
Supreme Court, Nassau County

Jeffrey Rabiea, Plaintiff,

against

Alan C. Stein, ALAN C. STEIN, P.C., and VALLEY FORGE FLAG COMPANY, Defendant.



17432/08



To: Law Offices of Edward Weissman

Attorney for Plaintiff

60 East 42nd Street

New York, NY 10165

Babchik & Young, LLP

Attorneys for Defendants

Alan C. Stein and

Alan C. Stein, P.C.

200 E. Post Road, 2nd Floor

White Plains, NY 10601

Marshall, Dennehey, Warner,

Coleman & Goggin

Attorneys for Defendant

Valley Forge Flag Company

The Graybar Building

420 Lexington Avenue

Suite 335

New York, NY 10170

Daniel Palmieri, J.



This motion by the defendants Alan C. Stein and Alan C. Stein, P.C. pursuant to CPLR 3211(a) to dismiss the complaint prior to answer is granted. The motion by defendant Valley Forge Flag Company (erroneously denominated a cross motion see CPLR 2215) is granted. The complaint is dismissed in its entirety.

This action is based upon a letter written by defendant Stein, an attorney representing codefendant Valley Forge Flag Company ("Valley Forge") in a commercial collection action commenced by a corporation named New York Packaging Corp. ("NYPC"). This letter, dated August 25, 2008, was to the attorney representing NYPC, and concerned the plaintiff in the instant action, NYCP's principal/president.

The letter contained the following statement: "In light of the foregoing, in an attempt to limit your client's further testimony, criminal liability and an exposure to legal fees being recovered by the defendant in this action, Valley Forge Flag Company is willing to enter into a settlement where no monies are exchanged and the parties exchange releases in full and final satisfaction of the claims contained in the complaint. In the event that this offer is not accepted by plaintiff, defendant will have no choice but to proceed to trial there by subjecting your client to possible perjury."[*2]

Based upon the foregoing, the complaint in the instant action alleges two causes of action. The first sounds in defamation, reprints the statement above, and alleges libel per se. It also alleges a violation of the Disciplinary Rules regulating the conduct of attorneys. Plaintiff further alleges that the alleged "misconduct on the part of the defendants was designed... to force the plaintiff to accede to the defendants' unjustified demand to discontinue the Civil action commenced by [NYPC] against [Valley Forge] by threatening criminal prosecution if plaintiff insisted upon pursuing the Civil Action."

The second cause of action sounds in prima facie tort, further alleging that the conduct was designed to inflict emotional distress on the plaintiff.

These motions are made prior to answer. The well-established standard this Court must apply to a CPLR 3211(a)(7) ground (failure to state a cause of action) is that, upon a review within the four corners of the pleading, in which all statements of fact are accepted to be true, the motion should fail if a cause of action may be discerned therefrom. See, e.g., Sanders v Winship, 57 NY2d 391 (1982); Guggenheimer v Ginzburg, 43 NY2d 268 (1977). Further, to the extent the movant relies on documentary evidence, such evidence must dispose of the issues raised as a matter of law, and cannot be based on other forms of proof. Tougher Indus. v Northern Westchester Joint Water Works, 304 AD2d 822 (2d Dept. 2003); Berger v Temple Beth-El of Great Neck, 303 AD2d 346 (2d Dept. 2003); Seigel, NY Prac. § 259 (3d Ed.). Both the complaint and the letter are submitted in support of the motion. Notwithstanding the stringent standards noted, the Court finds that by way of these submissions the defendants have demonstrated their entitlement to the relief requested.

A cause of action in defamation exists where the plaintiff pleads a false statement, published without authorization or privilege to a third party, as a result of, at least, negligence, and which statement causes special damages or which constitutes defamation per se. Salvatore v Kumar, 45 AD3d 560 (2d Dept. 2007). Here, because the alleged libel involved an accusation of perjury, a serious crime, the per se form of the tort has been pled; this element of the claim is not challenged by defendants as a matter of pleading. See, Liberman v Gelstein, 80 NY2d 429 (1992).

Movants do claim, however, that the plaintiff cannot demonstrate publication, because the recipient was the plaintiff's attorney. He relies on one case, Wells v Belstrat Hotel Corp. 212 App Div 366 (1st Dept. 1925), for the proposition that publication to an agent is, in fact, no publication at all. However, in a later case decided by the Appellate Division, Fourth Department, the Wells case was not interpreted as making this flat statement of the law. The Fourth Department indicated that such a view would run counter to the Restatement of Torts and other persuasive authority, including Prosser on Torts, to the effect that communication of a defamatory statement to a servant or agent is indeed a publication of that statement to a third party. Teichner v Bellan, 7 AD2d 247 (4th Dept. 1959). The Teichner court noted that

"the decision in [Wells] turned upon a finding of consent on the part of the plaintiff to the making of the defamatory statement to his agent, rather than upon any broad proposition that the publication to an agent of the person defamed is not publication... the [*3]defendant's manager had slandered the plaintiff... the plaintiff had thereafter requested his attorney to make inquiry of the defendant as to its version of the facts in controversy... the defendant's manager replied by letter to the attorney, repeating the same defamatory statements... The [Wells] court concluded that the defamatory letter had been... solicited' by the plaintiff, and the cause of action for libel based upon the letter was accordingly dismissed... the court in that case merely held that under the circumstances there presented the plaintiff was chargeable with having consented to the communication of the defamatory matter to his attorney."

Teichner, supra, at 250.

This reading of Wells is consistent not only with the Restatement and Prosser sections cited by the Fourth Department, but also with a Court of Appeals decision, also cited by the Teichner court.In that case, the Court had held that dictation by the defendant to his own stenographer of a defamatory letter addressed to the plaintiff was a publication to a third party. Ostrowe v Lee, 256 NY 36 (1931). Ostrowe was decided later than Wells, and in a more modern era the Court of Appeals has indicated that Ostrowe is still good law. Loughry v Lincoln First Bank, N.A., 67 NY2d 369 (1986). It also should be noted that the Appellate Division, Second Department, cited both Wells and Teichner for the proposition the Teichner court had stated regarding plaintiff's consent to the making of the defamatory statement. Thompson v Maimonides Med. Ctr., 86 AD2d 867 (2d Dept. 1982); see also, Hirschfeld v Institutional Investors, Inc., 260 AD2d 171, 172 (1st Dept. 1999) [same, citing Teichner]. Accordingly, this Court concludes that sending the alleged defamatory letter to the plaintiff's attorney constituted publication and thus satisfies that element of the cause of action.

Nevertheless, the Court agrees with the defendants that the defamation action must be dismissed because this letter, sent from one attorney in the underlying collection action to another, enjoyed an absolute privilege. "In view of the public policy to permit persons involved in a judicial proceeding to write and speak about it freely among themselves, pertinent statements made in the course of such proceedings are afforded the protection of privilege, irrespective of the motive with which [the statements] are made.' " Sexter & Warmflash v Margrabe, 38 AD3d 163 (1st Dept. 2007), quoting Wiener v Weintraub, 22 NY2d 330 (1968). Provided the statements are made by and among parties, counsel, witnesses and the court, the privilege applies. Id., at 174, and cases cited. Further, what is pertinent is properly a question for the court based upon the pleadings and documentary evidence, and the standard is a liberal one. Id. All the movant for dismissal need demonstrate for purposes of establishing the privilege is that "if, by any view or under any circumstances, it may be considered pertinent to the litigation." Martirano v Frost, 25 NY2d 505, 507 (1969).

Here, there can no doubt that the subject letter, written by one attorney to his [*4]adversary about his client's statements at a deposition, was pertinent to the litigation. Thus, it enjoyed an absolute privilege and cannot form the basis for a defamation claim. The Court makes no comment about the alleged violation the Disciplinary Rules alleged by the plaintiff, except to note that it cannot serve as a basis for a private cause of action. Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193 (1st Dept. 2003).

Finally, the second cause of action must also be dismissed. The claim sounds in prima facie tort, and is based on the same allegations and letter pled in support of the defamation claim. In order to make out a claim in prima facie tort, the plaintiff must plead facts alleging intentional harm for which no traditional tort provides a remedy; however, as pled here the claim is clearly and solely based on the letter, which plaintiff alleges was motivated by reasons other than a simple desire to harm. Therefore, no cause of action for prima facie tort is stated. Lancaster v Town of East Hampton, 54 AD3d 906 (2d Dept. 2008); Bassim v Hassett, 184 AD2d 908 (3d Dept. 1992).

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: December 23, 2008

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

To: Law Offices of Edward Weissman

Attorney for Plaintiff

60 East 42nd Street

New York, NY 10165

Babchik & Young, LLP

Attorneys for Defendants

Alan C. Stein and

Alan C. Stein, P.C.

200 E. Post Road, 2nd Floor

White Plains, NY 10601

Marshall, Dennehey, Warner,

Coleman & Goggin

Attorneys for Defendant

Valley Forge Flag Company

The Graybar Building

420 Lexington Avenue

Suite 335

New York, NY 10170

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