Bradford v. Pette

• Decision Date: 12 June 1953
• Citation: 204 Misc. 308
• Parties: Robert L. Bradford, Plaintiff,<BR>v.<BR>Nicholas M. Pette, Defendant.
• Court: New York Supreme Court

204 Misc. 308

Robert L. Bradford, Plaintiff,

v.Nicholas M. Pette, Defendant.

June 12, 1953.

E. F. W. Wildermuth for plaintiff.

Nathaniel L. Goldstein, Attorney-General (Irving L. Rollins of counsel), for defendant.

HILL, J.

In September, 1952, plaintiff commenced in this court an action for false arrest and imprisonment against some fifty-four defendants. That action was removed to the United States District Court for the Eastern District of New York by petition "on behalf of all the defendants" dated September 25, 1952, filed with the clerk of that court on the day following and with the clerk of this court on September 30, 1952. (Defendant's Exhibit "1".) By notice of motion dated October 4, 1952, plaintiff moved in the District Court to remand the action to this court, specifying ten grounds for such relief. That motion was denied in an opinion (Defendant's Exhibit "2") by the District Judge, dated November 14, 1952 (reported in Bradford v. Harding, 108 F.Supp. 338), and an order thereon made and filed on November 25, 1952.

Overlapping a portion of the period covered above were proceedings involving defendant Farrell, a New York City detective, and three other individual defendants. Farrell was served with process on or about September 8, 1952. The corporation counsel of the City of New York interposed in this court an answer on Farrell's behalf on or about October 7, 1952. On or about December 3, 1952, plaintiff served a notice to examine Farrell before trial and a subpœna directing him to appear for examination at the Special Term of this court. Upon Farrell's default in appearing for examination, plaintiff moved pursuant to the provisions of section 405 of the Civil Practice Act to strike out Farrell's answer, for an assessment of damages, and for a forfeiture of $50 for failure to obey the subpœna. That motion was, except as to the forfeiture, granted by default by order dated January 6, 1953, the court expressly noting, however, in its memorandum that: "The court understands that it may be hereafter asserted that this action is not pending in this court, but has been removed to the United States District Court for the Eastern District of New York. The efficacy of the order of removal as to this defendant has not been passed upon, there having been no appearance by this defendant on this motion." (N. Y. L. J., Dec. 18, 1952, p. 1540, col. 3.)

By notice of motion dated January 5, 1953, plaintiff moved for an order directing an assessment of damages against three other defendants for their default in pleading. By order to show cause dated January 20, 1953, Farrell moved to vacate the order of January 6th — which, as already noted, had been entered against him by default — permanently to stay prosecution of the action in this court and to direct that all papers therein be transferred to the United States District Court.

Those were the two motions which came on to be heard, in their regular order on January 30, 1953, before the defendant here, a Justice of the Supreme Court of the State of New York, Tenth Judicial District, then duly assigned to preside in Special Term, Part I, the motion part of this court. After stating the facts as they had theretofore occurred, the defendant, in an opinion dated and filed on February 9, 1953, denied plaintiff's motion and, except for the stay, granted that of Farrell, on the ground that "Plaintiff's motion to remand having been denied as aforesaid, no valid proceedings could be taken in this court at any time following the removal." That disposition was expressly made without prejudice to the plaintiff seeking relief in the United States District Court for the Eastern District of New York.

This action for libel is predicated upon certain allegedly defamatory matter contained in said opinion, which plaintiff alleges "the defendant caused * * * to be published in the New York Law Journal" on February 10, 1953. The defendant denied that he caused such publication to be made and asserted the defense of judicial privilege, to wit, that having composed, written and signed the opinion and delivered it to the clerk for filing in accordance with rule 72 of the Rules of Civil Practice, he had nothing whatever further to do with the procedure of this court, pursuant to which it was regularly published in the New York Law Journal on February 10, 1953, under a contract entered into between the Justices of the Appellate Division in the Second Judicial Department, and the publisher, pursuant to the authority conferred by subdivision 2 of section 91 of the Judiciary Law of the State of New York. The second complete defense looks to section 337 of the Civil Practice Act and in substance pleads that the publication was a "fair and true report of any judicial * * * proceedings". The third complete defense claims the privilege which is predicated upon the publication in good faith and from proper motives of a true and correct account of a judicial proceeding and the fourth complete defense pleads justification based upon the truth of the allegedly defamatory matter.

Plaintiff has now moved, pursuant to rule 109 of the Rules of Civil Practice, to dismiss the aforementioned defenses as insufficient in law; pursuant to rules 103 and 104, to strike out the entire answer as sham and frivolous, and pursuant to rules 112 and 113, for judgment. The defendant has countered with a motion for judgment on the pleadings, and for summary judgment founded upon documentary evidence, consisting, for the most part, of certified photostatic copies of official records annexed to his verified answer and additional evidence of the same quality incorporated in his moving papers.

The court will at the outset dispose of the defendant's procedural objections to plaintiff's motion. Since an action in libel is not included within the first nine subdivisions of rule 113 of the Rules of Civil Practice, plaintiff's motion for summary judgment is unavailable to him, and must be denied. (McGreevy v. McGreevy, 279 App. Div. 705; Donnelly v. National City Bank of New York, 276 App. Div. 1096.) It is otherwise when in an action not enumerated in said rule the defendant moves for summary judgment based upon defenses sufficient as a matter of law, including a general denial (Levine v. Behn, 282 N.Y. 120), founded upon facts established prima facie by documentary evidence or official record. (Mione Acres v. Chatmas Orchards, 277 App. Div. 425, 426-427; Marshall v. United States Review Corp., 258 App. Div. 722.)

Plaintiff's motion to strike the answer as sham and frivolous under rule 103 of the Rules of Civil Practice must also be denied since a motion under this rule is by its provisions limited to part of a pleading and not the whole thereof, and plaintiff has failed to specify in his notice of motion the particular matters in the answer to which he objects. (Schwartz v. Marjolet, 214 App. Div. 530.)

What remains then of plaintiff's motion is his application to strike the answer as sham and frivolous under rule 104 of the Rules of Civil Practice; his challenge of the legal sufficiency of the four complete defenses under rule 109, and his motion, under rule 112, for judgment on the pleadings addressed to the entire answer. Since affidavits may not be used in connection with motions made under rules 109 and 112, the affidavit annexed to the plaintiff's notice of motion has been considered, only with respect to his claim that the entire answer is sham and, together with other affidavits, in opposition to defendant's motion for summary judgment. Since plaintiff's motion is closely interrelated with that of the defendant, both motions will be considered together.

Although the opinion which contains the allegedly defamatory matter was composed, written and filed in connection with two motions which the defendant was called upon to decide in his capacity as a justice of this court, plaintiff charges in paragraph "11" of his amended complaint "That in composing said false and defamatory matter, defendant was actuated and motivated by actual malice and unlawfully, illegally, wilfully and maliciously intended to injure plaintiff." It is clear, however, that even if the opinion had been written with knowledge that the part complained of was false "and with actual intent to injure the plaintiff, the defendant, in accord with the well-established public policy, would be exempt from liability for `composing'" it. (Murray v. Brancato, 290 N.Y. 52, 56.) Judges "are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." (Murray v. Brancato, supra, at p. 55; Bradley v. Fisher, 13 Wall. [U. S.] 335, 351; Lange v. Benedict, 73 N.Y. 12, 25; Gans v. Callaghan, 135 Misc. 881, affd. 231 App. Div. 735, appeal dismissed, 256 N.Y. 552.)

Plaintiff, however, contends that defendant lacked all jurisdiction to make the determination embodied in his opinion and to utter the statements therein of which plaintiff complains.

One of such statements was part of a quotation from the opinion of the United States District Judge who denied plaintiff's motion to remand; the other was based upon Farrell's uncontradicted supplemental affidavits (defendant's Exhibits "B" and "C"), submitted with other supplemental papers (defendant's Exhibits "1" and "2") to meet the plaintiff's valid objection theretofore made in two affidavits of his attorney that "the moving papers herein are fatally defective by reason of the fact that no affidavit is annexed showing that Farrell has a good and meritorious defense to this action." (Rothschild v. Haviland, 172 App. Div. 562; Fitzgerald Mfg. Co. v. Alexander, 200 App. Div. 164, 168, appeal dismissed, 234 N.Y. 608; Calagna v. Green, N. Y. L. J., May 12, 1953, p. 1592, col. 8; Gritz v. Gavigan, 69 N. Y. S. 2d 18.) In reciting the facts offered by Farrell to show that he had a meritorious defense to plaintiff's...