Garson v. Hendlin

• Decision Date: 26 September 1988
• Citation: 141 A.D.2d 55,532 N.Y.S.2d 776
• Parties: Geoffrey GARSON, Respondent, v. Susan HENDLIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 776

532 N.Y.S.2d 776

141 A.D.2d 55

Geoffrey GARSON, Respondent, v. Susan HENDLIN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 26, 1988.

Bleakley & Schmidt, White Plains (William H. Mulligan, Jr., and Frank J. Ingrassia, on the brief), for appellant.

Feiden, Dweck & Sladkus, New York City (Harvey I. Sladkus, of counsel), for respondent.

Before BROWN, J.P., and KUNZEMAN, KOOPER and BALLETTA, JJ.

KOOPER, Justice.

Where a relative of a party involved in a divorce proceeding transmits an allegedly defamatory letter to the County Probation Department seeking to influence its recommendation with respect to the scheduling of psychiatric evaluations of the children involved, are the contents of the letter to be afforded an absolute privilege or are there circumstances under which an action for defamation may be maintained against the author of the letter? We answer the foregoing question by concluding that such a communication is qualifiedly privileged, thereby necessitating the pleading and proof of malice as a prerequisite to the maintenance of suit. Inasmuch as the plaintiff failed to produce evidentiary proof of actual malice in opposition to the defendant's motion for summary judgment, the complaint must be dismissed.

I

The pertinent facts are undisputed and disclose that in or about November 1984, after approximately 18 years of marriage, the plaintiff Geoffrey Garson commenced an action seeking a divorce from his wife, Vicki Garson, in the Supreme Court, Westchester County. In May 1985 the plaintiff and Vicki Garson entered into a stipulation which provided, inter alia, that he was to be awarded custody pendente lite of the parties' two infant children and possession of the marital residence. Thereafter, a second stipulation was executed under which it was agreed, inter alia, that the issue of Vicki's visitation would be submitted to the Westchester County Probation Department for review and recommendation to the Supreme Court. On or about March 4, 1986,--after interviews with the Garsons and their children were conducted by the Probation Department--a report was issued by Probation Officer Marjorie Roston and subsequently approved on March 14, 1986, by her Supervising Probation Officer Anthony D'Angelo.

The Probation Department's findings were submitted to the Supreme Court, Westchester County, where the Garson's divorce action was pending. In the report, it was noted that Mrs. Garson and the children had agreed to monthly visitation and further noted that Mrs. Garson had requested that the children receive psychiatric evaluation. The Probation Department declined, however, to recommend that the children undergo psychiatric evaluations as requested by Mrs. Garson.

II

Shortly after the submission of the Probation Report to the Supreme Court, Ms. Roston received a letter dated March 8, 1986, from the defendant, Susan Hendlin, Mrs. Garson's aunt. The record reveals that after the Garsons had separated, Vicki Garson temporarily resided with her aunt from December 1984 to May 1985 during which time the defendant witnessed telephone conversations between Vicki Garson and her children and discussed these conversations--as well as other matters pertaining to the Garson's marital discord--with Vicki Garson. The letter of March 8, 1986--written by the defendant at the request of Mrs. Garson--contained various observations and comments with respect to the plaintiff's relationship with the parties' two children, and forms the basis of the plaintiff's defamation action.

In May 1986, the plaintiff commenced the instant defamation action alleging that certain passages in the defendant's letter were defamatory. Thereafter, the defendant moved for summary judgment dismissing the complaint. In an affidavit submitted in support of the motion, the defendant stated, inter alia, that Mrs. Garson had requested that she write the letter to the probation department; that her purpose in sending the letter was to support Mrs. Garson and to state her "plea for help on behalf of the minor children", and that while the letter was critical, it was "not intended to defame [the plaintiff], but rather to help my grandniece and grandnephew and their mother in the hope of preventing a permanent loss of relationship between mother and children". In a further affidavit submitted in support of the motion, defense counsel argued, inter alia, that the letter was entitled to an absolute privilege, inasmuch as it was "published in conjunction with a judicial proceeding". Alternatively, counsel argued, inter alia, that if an absolute privilege were not applicable, the letter was nevertheless qualifiedly privileged.

The Supreme Court denied the defendant's motion for summary judgment, 136 Misc.2d 114, 517 N.Y.S.2d 702. Initially, the court held that the letter did not fall within the narrow range of communications entitled to the protection of an absolute privilege. The court further determined, however, that it could not, as a matter of law, conclude that the letter was qualifiedly privileged, inasmuch as there were presented triable issues of fact in respect to the defendant's status as a person possessing a requisite interest in the custody matter to whom a qualified privilege could be extended. Finally, the court held that if the defendant established the existence of this requisite interest, it would become the plaintiff's burden to establish that the defendant was motivated by malice. It is from the foregoing determination that the defendant now appeals.

III

On appeal, the defendant urges that her communication was entitled to the protections of an absolute privilege, theorizing that the letter was submitted as part of the Garson's divorce proceeding and that the defendant "became, in effect, a witness to the proceeding" requiring that her "statements be entitled to protection as a participant therein". We disagree.

As the Court of Appeals has observed, "[a]bsolute privilege is based upon the personal position or status of the speaker and is limited to the speaker's official participation in the processes of government" (see, Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209, 464 N.Y.S.2d 424, 451 N.E.2d 182; see also, Stukuls v. State of New York, 42 N.Y.2d 272, 397 N.Y.S.2d 740, 366 N.E.2d 829; Santavicca v. City of Yonkers, 132 A.D.2d 656, 657, 518 N.Y.S.2d 29, 44 N.Y.Jur.2d, Defamation and Privacy, § 89, at 60-61). Moreover, "[i]n judicial proceedings the protected participants include the Judge, the jurors, the attorneys, the parties and the witnesses," who are afforded the protection of an absolute privilege "for the benefit of the public, to promote the administration of justice, and only incidentally for the protection of the participants" (see, Park Knoll Assoc. v. Schmidt, supra, 59 N.Y.2d at 209, 464 N.Y.S.2d 424, 451 N.E.2d 182; Martirano v. Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425, 255 N.E.2d 693; People ex rel. Bensky v. Warden of City Prison, 258 N.Y. 55, 59-60, 179 N.E. 257). It is significant, however, that the courts traditionally "confine absolute privilege to a very few situations" (see, Park Knoll Assoc. v. Schmidt, supra, 59 N.Y.2d at 210, 464 N.Y.S.2d 424, 451 N.E.2d 182) and have been reluctant to extend its applicability "to cases that would represent a departure from the policies which originally brought the doctrine into being" (Stukuls v. State of New York, supra, 42 N.Y.2d at 277, 397 N.Y.S.2d 740, 366 N.E.2d 829).

When measured against the foregoing criteria, it is apparent that the defendant--a nonparty unofficially submitting her comments to the County Probation Department in support of the position taken by one of the parties to a lawsuit--is not an individual whose communications are appropriately cloaked with the immunity of an absolute judicial privilege. To afford the defendant's informal communication the protections of an absolute privilege would represent a clear departure from the circumspect and narrow fashion in which the courts have applied the doctrine (see, Park Knoll Assoc. v. Schmidt, supra; Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1, 376 N.E.2d 163; Stukuls v. State of New York, supra ). The purpose of the judicial privilege is to afford judges, litigants and witnesses the ability to participate " 'without fear or favor in the furtherance of a vigorous and independent administration of justice' " (Stukuls v. State of New York, supra, 42 N.Y.2d at 275, 397 N.Y.S.2d 740, 366 N.E.2d 829 quoting from Yates v. Lansing, 5 Johns 282, 292; Martirano v. Frost, supra; cf., Abbott v. Tacoma Bank of Commerce, 175 U.S. 409, 411, 20 S.Ct. 153, 154, 44 L.Ed. 217).

The defendant herein is not a participant in the Garsons' matrimonial proceeding to the extent that the "independent administration of justice" and integrity of the judicial process require that her communications be clothed with an absolute privilege (cf., Toker v. Pollak, supra; Sack, Libel, Slander and Related Problems, §§ V1.2.1, V1.2). Further, the policy considerations implicated by the extension of absolute privilege have uniformly weighed heavily among the factors typically considered by courts in determining whether application of the privilege is warranted (see, e.g., Park Knoll Assoc. v. Schmidt, 89 A.D.2d 164, 169, 454 N.Y.S.2d 901, rev. on other grounds 59 N.Y.2d 205, 464 N.Y.S.2d 424, 451 N.E.2d 182, supra; see also, Stukuls v. State of New York, supra, 42 N.Y.2d at 277, 397 N.Y.S.2d 740, 366 N.E.2d 829; Toker v. Pollak, supra; Andrews v. Gardiner, 224 N.Y. 440, 446-447, 121 N.E. 341, cf., Stilsing Elec. v. Joyce, 113 A.D.2d 353, 356-357, 495 N.Y.S.2d 999; Studley, Inc. v. Lefrak, 50 A.D.2d 162, 165, 376 N.Y.S.2d 200 affd. 41 N.Y.2d 881, 393 N.Y.S.2d 980, 362 N.E.2d 611). The special policy concerns which underlie the judicial privilege are not furthered by extending the cloak of absolute immunity to nonparticipants who chose to informally convey their opinions and beliefs in respect...