Allan and Allan Arts Ltd. v. Rosenblum

• Decision Date: 01 August 1994
• Citation: 615 N.Y.S.2d 410,201 A.D.2d 136
• Parties: , 22 Media L. Rep. 2214 ALLAN AND ALLAN ARTS LTD., d/b/a Gateway Playhouse, Appellant, v. Gloria M. ROSENBLUM, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 410

615 N.Y.S.2d 410

201 A.D.2d 136, 22 Media L. Rep. 2214

ALLAN AND ALLAN ARTS LTD., d/b/a Gateway Playhouse, Appellant, v. Gloria M. ROSENBLUM, Respondent.

Supreme Court, Appellate Division,

Second Department.

Aug. 1, 1994.

Nowak & Pope, Water Mill (Ann L. Nowak, of counsel), for appellant.

Gloria May Rosenblum, East Islip (Kenneth Rosenblum, of counsel), respondent pro se.

Before BRACKEN, J.P., and BALLETTA, COPERTINO and SANTUCCI, JJ.

BALLETTA, Justice.

The plaintiff brought the instant action to recover damages for slander and libel based on statements made by the defendant at a hearing before the Village of Bellport Zoning Board of Appeals (hereinafter the Board), which statements related to the plaintiff's application for a use variance for its property located adjacent to the defendant's property. The Supreme Court, Suffolk County, held that the defendant's statements were covered by an absolute privilege and dismissed the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The question that must be resolved, therefore, is whether an absolute privilege should attach to relevant statements made by an adjoining landowner at a public hearing conducted by a village zoning board of appeals on an application for a variance. We agree with the Supreme Court, Suffolk County, that an absolute privilege attaches to such statements and, therefore, affirm.

The plaintiff, a regional playhouse, is located in the Village of Bellport in an area zoned Residence B, and has operated a summer theatre on the subject premises since the 1940's. The defendant has owned the property abutting the plaintiff's eastern boundary for 16 years.

In April 1989 the plaintiff applied to the board, seeking a variance for the outdoor storage of tractor trailers and for a handicapped parking lot on the southeast corner of its property. On June 22, 1989, the Board held a public hearing on the plaintiff's application. A court stenographer was present at the hearing, at the plaintiff's request, and recorded the proceedings, a transcript of which was thereafter provided to the Board pursuant to an agreement between the Board and the plaintiff.

At the hearing, the defendant made various oral statements in opposition to the plaintiff's application, limiting her remarks primarily to the plaintiff's proposed handicapped parking in the southeast corner of the parcel. While the defendant did not object to the use of a portion of the plaintiff's property for handicapped parking, she objected to its location adjacent to her property, asserting that the proposed location was unsuitable for handicapped purposes, and that the headlights from the vehicles would shine into her living room. During her oral presentation, the defendant also made numerous allegations concerning the plaintiff's use of the property. In particular, she claimed that the plaintiff's past and present use of the southeast portion of its property for parking was illegal, that the plaintiff's current request for a variance designating the area for handicapped parking was a "cynical manipulation * * * to legalize its long term conduct", and that the plaintiff had "continued to violate the law, maintain the illegal storage, parking, noise and illegal year-round activity, despite years of warning".

In its complaint, the plaintiff alleged that the defendant's oral statements made at the hearing were not only slanderous but that they were also libelous because they were recorded and published by the court stenographer. The defendant moved to dismiss the complaint on the ground that her statements before the Board were protected by an absolute privilege. The Supreme Court, Suffolk County, granted the motion and dismissed the complaint, ruling that the zoning board was a quasi-judicial body, and, therefore, statements made before that body were absolutely privileged; the court further held that, as the adjacent landowner, the defendant enjoyed sufficient status to entitle her to the privilege. We agree.

It has long been settled "that a counsel or party conducting judicial proceedings is privileged in respect to words or writings used in the course of such proceedings reflecting injuriously upon others, when such words and writings are material and pertinent to the questions involved; and that, within such limit, the protection is complete, irrespective of the motive with which they are used" (see, Marsh v. Ellsworth, 50 N.Y. 309, 311-312; see also, Fowler v. Conforti, 194 A.D.2d 394, 598 N.Y.S.2d 782; Hammer v. Berg, 193 A.D.2d 716, 597 N.Y.S.2d 740; Grasso v. Mathew, 164 A.D.2d 476, 564 N.Y.S.2d 576). The same rule applies with equal force to the statements made by witnesses in a judicial proceeding (see, Andrews v. Gardiner, 224 N.Y. 440, 446, 121 N.E. 341).

The rationale for the according of an absolute privilege to such statements is that:

" 'The interest of society requires that whenever [persons] seek the aid of courts of justice, either to assert or to defend rights of person, property, [or] liberty, speech and writing therein must be untrammelled and free. The good of all must prevail over the incidental harm to the individual. So the law offers a shield to the one who in legal proceedings publishes a libel, not because it wishes to encourage libel, but because if [persons] were afraid to set forth their rights in legal proceedings for fear of liability to libel suits, greater harm would result, in the suppression of the truth. The law gives to all who take part in judicial proceedings, judge, attorney, counsel, printer, witness, litigant, a right to speak and to write, subject only to one limitation, that what is said or written bears upon the subject of litigation' (1 Seelman, The Law of Libel and Slander in the State of New York [rev ed], par 191, at 233)" (see, Park Knoll Assoc. v. Schmidt, 89 A.D.2d 164, 170, 454 N.Y.S.2d 901, rev'd on other grounds 59 N.Y.2d 205, 464 N.Y.S.2d 424, 451 N.E.2d 182; see also, Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605 N.E.2d 344; Karam v. First Am. Bank of N.Y., 190 A.D.2d 1017, 593 N.Y.S.2d 640; Marsh v. Ellsworth, supra, at 312).

Moreover, the grant of absolute immunity which attaches to statements made in the course of judicial proceedings applies not only to proceedings before a court but also to proceedings "before tribunals having attributes similar to those of courts" (see, Andrews v. Gardiner, supra, 224 N.Y. at 446, 121 N.E. 341). The evolution of the application of absolute privilege to quasi-judicial proceedings was described by this court in the case of Julien J. Studley, Inc. v. Lefrak, 50 A.D.2d 162, 165, 376 N.Y.S.2d 200, aff'd 41 N.Y.2d 881, 393 N.Y.S.2d 980, 362 N.E.2d 611):

"We acknowledge that the rule of qualified privilege has been a traditional point of departure in the analysis of defamation suits vis-a-vis administrative proceedings. Over 40 years ago this court specifically held the rule applicable to a license revocation proceeding similar to that involved herein (Leganowicz v. Rone, 240 App.Div. 731 . Since that time, however, the complexities of our modern society have substantially broadened the role of administrative law both in its rule-making and adjudicative aspects. With that expansion has come a concomitant recognition by many courts that certain attributes of the judicial process have equal relevance to those administrative bodies that utilize a quasi-judicial process in the determination of individual rights, privileges or obligations."

Accordingly, during the past several decades, the courts have extended the absolute privilege to a wide array of hearings held by administrative agencies, finding such hearings to be "in substance judicial" (see, Andrews v. Gardiner, supra, 224 N.Y. at 447, 121 N.E. 341). Examples include Herzfeld &amp Stern v. Beck, 175 A.D.2d 689, 572 N.Y.S.2d 683 [the New York Stock Exchange's Department of Enforcement acted as a quasi-judicial body when it inquired into whether a member or its employee should be disciplined], Stilsing Elec., Inc. v. Joyce, 113 A.D.2d 353, 495 N.Y.S.2d 999 [proceedings held before an administrative agency of the New York State Department of Labor investigating the defendant's complaint concerning the plaintiff's apprenticeship program were quasi-judicial], Lipton v. Friedman, 2 Misc.2d 165, 152 N.Y.S.2d 261 [Workers' Compensation Board hearing which passes upon claims of injured workers brought against their employers was deemed quasi-judicial because of the hearing's adversarial nature, since the Referee's decision applied the law to the facts, and was subject to appellate review], Kitchner v. State of New York, 82 Misc.2d 858, 371 N.Y.S.2d 91 [unemployment insurance benefits hearing constituted quasi-judicial proceeding because the issue was determined by an adversarial proceeding, appropriate provisions of law were applied to the facts and the decision was subject to appellate review], and Julien J. Studley, Inc. v. Lefrak, supra, 50 A.D.2d at 162, 376 N.Y.S.2d 200 [a complaint filed with the agency that licenses real estate brokers concerning a license revocation proceeding].

Turning now to the instant case involving statements made at a public hearing held by a zoning board of appeals on an application for a variance, it should be noted that the quasi-judicial character of a zoning board of appeals was addressed by this court in Orange County Pub. Div. of Ottaway Newspapers v. Council of City of Newburgh, 60 A.D.2d 409, 401 N.Y.S.2d 84, aff'd 45 N.Y.2d 947, 411 N.Y.S.2d 564, 383 N.E.2d 1157, wherein it was held that the deliberative proceedings of a zoning board regarding a variance application were quasi-judicial (see, Matter of Orange County Publ. v. Council of City of Newburgh, supra, at 418, 401 N.Y.S.2d 84; see also, 12 NYJur2d Buildings § 319). Similarly, in Matter of Moundroukas v. Foley, 99 A.D.2d 784, 472 N.Y.S.2d 32), this court affirmed the dismissal of a suit for monetary...