Klein v. McGauley

• Decision Date: 25 March 1968
• Citation: 288 N.Y.S.2d 751,29 A.D.2d 418
• Parties: Ernest KLEIN, Respondent, v. Lawrence McGAULEY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 751

288 N.Y.S.2d 751

29 A.D.2d 418

Ernest KLEIN, Respondent, v. Lawrence McGAULEY et al., Appellants.

Supreme Court, Appellate Division, Second Department.

March 25, 1968.

Lord, Day & Lord, New York City (Reigh F. Klann and John Koshel, Jr., New York City, of counsel), for appellants.

Harry L. Klein, New York City (Raymond Rubin, Myles N. Weintraub and Harry L. Klein, New York City, of counsel), for respondent.

Before BELDOCK, P.J., and CHRIST, BRENNAN, HOPKINS and MARTUSCELLO, JJ.

CHRIST, Justice.

The action is in slander. The defendants moved (1) for summary judgment on the sixth (and sole remaining) cause of action in the amended complaint on the ground the allegedly slanderous statement in question was absolutely privileged as a matter of law, having been made in the course of, and pertinent to, a judicial proceeding; or, (2) in the alternative, for dismissal of that cause on the ground (among others) the statement was not slanderous per se and no special damage was alleged. Their motion was in all respects denied and this appeal tests the correctness of that determination.

It is alleged in the amended complaint that the plaintiff is a duly ordained rabbi of the Hebrew Orthodox faith and occupies the pulpit of an established synagogue in Brooklyn, New York. The following is established in the record. In 1961 a judgment of $13,755.34 was recovered against the plaintiff herein; the judgment was not satisfied and the defendant law firm, as attorneys for the judgment creditor, commenced a supplementary proceeding against the plaintiff on July 1, 1961 by service of a subpoena duces tecum. On July 5, 1961, the return date of the subpoena, the plaintiff appeared for examination at the office of the clerk of Special Term, Part II, of the Supreme Court in Kings County.

The plaintiff claims that when he arrived, defendant McGualey, an associate of the defendant law firm, approached him and, in the presence of various people, said, 'If you do not pay the judgment in this case, I will call all the newspapers here and tell them who you are and that you are a crook.' It is this statement which forms the basis of the sixth cause of action.

The complaint states (among other things) that by these words 'the defendants meant * * * that plaintiff was a person of ill and dishonest repute who was guilty of criminal acts and of various offenses and dishonest dealings and could not be trusted and was a person not fit to engage in the profession of a rabbi.' It states further that thereby the plaintiff's reputation 'in his profession as a rabbi has been defamed and adversely affected' and he 'has been held up as an object of (public) scorn and contempt'. No special damage is alleged.

Dealing briefly with the first question on this appeal, namely, whether the statement was absolutely privileged in any event as being made in the course of, and pertinent to, a judicial proceeding, it is uncontested that the statement, if made, was made on the occasion of the plaintiff's appearance in the court clerk's office in accordance with the service of a subpoena in a pending supplementary proceeding. Where there is no dispute as to the facts, the determination of the question of privilege is a question of law (People ex rel. Bensky v. Warden of City Prison, 258 N.Y. 55, 60, 179 N.E. 257, 259; 2 Seelman, Libel and Slander (rev. ed.), p. 1058, par. 105).

There is no doubt that this statement, if made, was made in the course of a judicial proceeding. A supplementary proceeding to enforce the collection of a judgment, commenced by the service of a subpoena duces tecum, is a judicial proceeding within the meaning of the privilege rule (see Cooper v. Stone, 14 A.D.2d 814, 221 N.Y.S.2d 252, holding that statements in affidavits submitted in such a proceeding are absolutely privileged). The judgment debtor is required to come before the court and be examined under oath concerning his assets; and his failure to do so is punishable as a contempt of court (CPLR § 2308, subd. (a), §§ 5210, 5251 (formerly Civil Practice Act, §§ 405, 801)).

The privilege is not limited to statements made or documents used in open court. 'In the course of' has been broadly construed to embrace letters between litigating parties or their attorneys or sent to the court concerning a pending proceeding (Simon v. Potts, 33 Misc.2d 183, 225 N.Y.S.2d 690), unsolicited offers of settlement (Zirn v. Cullom, 187 Misc. 241, 63 N.Y.S.2d 439), briefs on appeal and statements made during an examination of corporation books and records at a hotel pursuant to an order of discovery (Kraushaar v. Lavin, Sup., 39 N.Y.S.2d 880). Thus, the fact that this statement was spontaneously made prior to the swearing in of the plaintiff as a witness does not deprive it of protection.

However, the statement complained of was not pertinent to the proceeding. Although the test of pertinency is extremely liberal, the privilege is nevertheless lost 'when the language used goes beyond the bounds of reason and is so clearly impertinent and needlessly defamatory as not to admit of discussion' (People ex rel. Bensky v. Warder of City Prison, 258 N.Y. 55, 59, 179 N.E. 257, 259 supra). Here, the alleged language used constitutes just such an extreme case. True, the purpose of a supplementary proceeding is to expedite the collection of a civil judgment; but we cannot approve the use of threats and abuse as a means of forcing such payment. The purpose of the intended examination having been merely to inquire into the plaintiff's possession of assets which might be applied in satisfaction of his debt, the offending statement, if made, was completely uncalled for and needlessly defamatory.

Although the alleged offensive utterance is unprotected by an absolute privilege, the question remains whether it is actionable without proof of special damage. The defendants' most serious argument for reversal is that the word 'crook' is not slanderous per se because it neither imputes an indictable crime nor referred to the plaintiff in his clerical capacity. Before this contention is analyzed in detail, a brief summary of the law of slander would be helpful.

Contrary...