Dachowitz v. Kranis

• Decision Date: 06 February 1978
• Citation: 61 A.D.2d 783,401 N.Y.S.2d 844
• Parties: Seyma DACHOWITZ et al., Appellants, v. Jack KRANIS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 844

401 N.Y.S.2d 844

61 A.D.2d 783

Seyma DACHOWITZ et al., Appellants, v. Jack KRANIS, Respondent.

Supreme Court, Appellate Division, Second Department.

Feb. 6, 1978.

Leonard Brodsky, New York City, for appellants.

Kranis & Kranis, New York City (Stephen Levine, New York City, of counsel), for respondent.

Before TITONE, J. P., and SUOZZI, COHALAN and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

In an action inter alia to recover damages for libel, plaintiffs appeal from an order of the Supreme Court, Kings County, entered May 17, 1977, which, upon treating defendant's motion to dismiss the complaint for failure to state a cause of action as one for summary judgment, granted the motion and dismissed the complaint.

Order reversed, on the law, with $50 costs and disbursements, and motion denied. Defendant's time to answer is extended until 20 days after entry of the order to be made hereon.

Plaintiffs-appellants, Seyma Dachowitz and her husband, Rabbi Pincus Dachowitz, brought this action to recover damages from defendant-respondent Jack Kranis, an attorney, for his having asserted, in an affidavit submitted in a judicial proceeding, that the plaintiff wife had been convicted of crimes in both the Federal and State courts. The defendant, claiming his statements were absolutely privileged, was granted summary judgment and the complaint was dismissed.

The alleged libel was made by Kranis in an action pending in the Civil Court of the City of New York. In that action, Kranis sued, among others, the plaintiff wife and a realty corporation in which she was an officer, to collect a legal fee for services he allegedly rendered on their behalf. After the granting of a motion to dismiss Kranis' action on the ground that it was time-barred, he moved to reargue. In his affidavit on reargument, he made the following statement:

"That I was first retained by the Defendants, which include the same Seyma (Sam) Dachowitz who was convicted in Federal and State Courts for various improprieties as the accountant for Bernard Bergmann (sic ), the nursing home magnate".

In granting summary judgment to the defendant and dismissing the complaint, Special Term accepted defendant's contention that the basis for his having made the statement was to impeach and reflect upon the credibility of the adversary party. Therefore, reasoned Special Term, the statement was at least possibly pertinent and the defendant had established on the record the defense of absolute privilege with respect to the libel causes of action. We respectfully disagree with Special Term's analysis and with its ultimate conclusion.

We agree with Special Term and the dissenter herein that an absolute privilege attaches to an oral or written statement made in a judicial proceeding which is pertinent to the proceeding and that the term "pertinent" has been liberally construed by the courts to attach to any statement that may possibly be or become material or pertinent (Andrews v. Gardiner, 224 N.Y. 440, 441, 121 N.E. 341; People ex rel. Bensky v. Warden, 258 N.Y. 55, 59, 179 N.E. 257, 258-259; Martirano v. Frost, 25 N.Y.2d 505, 507, 307 N.Y.S.2d 425, 426-427, 255 N.E.2d 693, 694). We also agree that the barest rationality, divorced from any palpable or pragmatic degree of probability, suffices, and that any doubt should be resolved in favor of upholding the privilege (Seltzer v. Fields, 20 A.D.2d 60, 62-63, 244 N.Y.S.2d 792, 795-796, affd. 14 N.Y.2d 624, 249 N.Y.S.2d 174, 198 N.E.2d 368; Klein v. Walston & Co., 41 Misc.2d 379, 245 N.Y.S.2d 660, affd. 27 A.D.2d 988, 280 N.Y.S.2d 911). It is also true that a statement made in a judicial proceeding accusing an opposing party of having been convicted of a crime may, in a given case, be deemed privileged on the ground that it was made to impeach the credibility of that party (Piccini v. Myers, 9 Misc.2d 169, 173 N.Y.S.2d 181).

However, after a thorough perusal of the four corners of the papers submitted by the parties in this action, we are of the opinion that there is not one scintilla of evidence present upon which to base the possible pertinency of defendant's statement. Furthermore, the proof which has been adduced strongly negates defendant's contention that the statement was made for the purpose of impeaching the credibility of plaintiff Seyma Dachowitz.

Specifically, in the affidavits and affirmations submitted in opposition to defendant's motion in this action, plaintiffs and their attorney assert that (1) plaintiff Seyma Dachowitz is the wife of plaintiff Rabbi Pincus Dachowitz and has been married to him for 25 years; (2) Seyma Dachowitz is a female and has never been known as "Sam" Dachowitz; (3) she has never been convicted in a Federal or State court of any impropriety as the accountant for Bernard Bergman and is not even an accountant; (4) Rabbi Pincus Dachowitz has been the Chief Rabbi and spiritual leader of Congregation B'Nai Israel of Midwood for 31 years; (5) defendant Jack Kranis has been a member of that congregation for 31 years and has been its president and chairman of the board; (6) during that period defendant had social and professional relations with the Rabbi and his family on numerous occasions, was a guest in the latter's home and was his lawyer and friend; and (7) the plaintiff Seyma Dachowitz has known defendant for 25 years.

In none of the papers submitted in support of defendant's motion herein was any serious effort made to challenge the accuracy of the afore-mentioned assertions. Moreover, in a reply affidavit, defendant Kranis conceded that he and Pincus Dachowitz have known each other for "many, many years". Thus, the record is devoid of any grounds, either reasonable, unreasonable, mistaken, imaginary, or even feigned, upon which it could be held that defendant's gratuitous statement was at least "possible pertinent" (see Seltzer v. Fields, 20 A.D.2d 60, 62, 244 N.Y.S.2d 792, 795, supra ).

It should also be observed that in a supplemental affirmation submitted to the Civil Court on behalf of Kranis' motion to reargue, the affirmant sought to correct the 36-word spurious statement about Seyma Dachowitz; he labeled it a "typographical error" and further stated "upon information and belief Seyma Dachowitz is the wife of Sam Dachowitz * * * who was upon information and belief, an officer or shareholder or both of the defendant corporation Seyma Realty Corp., Inc. In fact much of the negotiation was conducted with the same Sam Dachowitz, who acted on behalf of the corporation." That affirmation, made "upon information and belief", should be given no weight or credence since, first, it was not made by defendant, but by his associate, Richard Kranis, also an attorney, and, second, nowhere in the affirmation is there a claim that the Sam Dachowitz mentioned either was Bernard Bergman's accountant, etc., or that defendant believed that Sam Dachowitz held that position, and that defendant was under the impression that Seyma Dachowitz and Sam Dachowitz were one and the same person. In passing, it should also be noted that the subject 36-word derogatory and spurious declaration of defendant concerning Seyma Dachowitz hardly falls within the category of a "typographical error", as we understand the term. That expression usually refers to a defect only as to form, or to an inadvertent printing or typing mistake, which does not render the whole assertion nugatory and of no effect (cf. People v. West, 128 Ill.App.2d 63, 262 N.E.2d 323).

Accordingly, in our opinion, the statement, on its face, added nothing to the issue before the Civil Court on the motion for reargument, to wit, whether Kranis' action for a legal fee was time-barred. We also believe that the uncontroverted evidence adduced by plaintiffs on Kranis' motion in this action demonstrates, prima facie, that the statement was so outrageously out of context as to permit one to conclude (from the mere fact that it was uttered) that it was motivated by no other desire than to defame (cf. Martirano v. Frost, 25 N.Y.2d 505, 508, 307 N.Y.S.2d 425, 427, 255 N.E.2d 693, 694, supra ). Thus, the conclusions of Special Term that the "alleged libelous statement herein was not 'so obviously impertinent as not to admit of discussion' " and was made to impeach the credibility of the adversary party, are, on this record, baseless. Whether the statement complained of was made by the defendant in good faith and without malice in the belief that it was pertinent and material to the issues between the parties, or whether it was maliciously made to libel and injure the plaintiff wife, are questions of fact which should be decided upon a trial (see Wiser v. Koval, 50 A.D.2d 523, 524, 374 N.Y.S.2d 652, 654-655).

TITONE, J. P., SUOZZI and COHALAN, JJ., concur.

HAWKINS, J., dissents and votes to affirm the order granting defendant summary judgment and dismissing the complaint, with the following memorandum:

Prefatorially, we are confronted with a "hard case". It is well, therefore, to recall Mr. Justice ROBERT H. JACKSON's admonition:

"We agree that this is a hard case, but we cannot agree that it should be allowed to make bad law" (Federal Communications Comm. v. WOKO, Inc., 329 U.S. 223, 229, 67 S.Ct. 213, 216, 91 L.Ed. 204).

This action in libel has its genesis in a prior action in which the plaintiffs-appellants, among others, were sued for legal fees by the defendant-respondent. In his affidavit in support of his motion to reargue and vacate a prior determination of the Civil Court of the City of New York, which had dismissed his complaint as time-barred, defendant, an attorney, stated:

"That I was first retained by the Defendants, which included the same Seyma (Sam) Dachowitz who was convicted in Federal and State Courts for various improprieties as the accountant for Bernard Bergmann (sic ), the nursing home magnate".

The allegation is conceded by defendant to be a canard.

The complaint alleges three causes of action: the first cause of...