Longo v. Tauriello

• Decision Date: 19 September 1951
• Citation: Longo v. Tauriello, 201 Misc. 35, 107 N.Y.S.2d 361 (N.Y. Sup. Ct. 1951)
• Parties: Jean Longo et al., Plaintiffs,<BR>v.<BR>Filomena Tauriello, Defendant.
• Court: New York Supreme Court

201 Misc. 35

Jean Longo et al., Plaintiffs,

v.Filomena Tauriello, Defendant.

September 19, 1951.

Nelson J. Roth for defendant.

Nicholas La Carrubba for plaintiffs.

DI GIOVANNA, J.

Defendant moves, pursuant to rules 106and107 of the Rules of Civil Practice, to dismiss the complaint upon the ground that the same is insufficient in law and that the court has not jurisdiction of the subject matter of the action, pursuant to rule 103 of the Rules of Civil Practice to strike out part of paragraph fifth of the complaint on the ground that the same is sham, frivolous and irrelevant, and, pursuant to rule 112 of the Rules of Civil Practice, for judgment on the pleadings.Plaintiffs cross-move to strike out defendant's answer upon the ground that the same is sham and frivolous and also for judgment on the pleadings.

The complaint sets forth three causes of action for libel and the answer, in addition to denying the material allegations of the complaint, sets up three affirmative defenses.

As the basis for the motion under rules 106and107, defendant contends that the libelous statements set forth in the complaint were part of the papers submitted in the proceedings before the Temporary State Housing Rent Commission and consequently they are absolutely privileged and will not support an action for libel.Defendant also asserts that the complaint fails to allege sufficient ultimate facts showing publication of the libels.

The determination of the question of privilege is one of law for the court and if it be determined that the language used in the course of a judicial proceeding was not impertinent, the privilege is absolute (People ex rel. Bensky v. Warden, 258 N.Y. 55, 59).The protection of this privilege is limited, however, to remarks made by legislators in the course of debates, to reports of military officers to their superiors, to official acts of state, and to statements made by counsel, judge, parties or witnesses in proceedings in court or for use in such proceedings, and in proceedings before tribunals and officers having the judicial attributes of a court.Only in such instances can the right of the individual to be secure in his reputation be invaded with complete immunity.It also appears that the tendency of our courts is to restrict the rule of absolute privilege rather than to extend it (Andrews v. Gardiner, 224 N.Y. 440).The latter case was one involving an action for libel growing out of statements by counsel in an application for a pardon made to the Governor and to which the plaintiff was opposed.The court held that the privilege of the defendant's counsel was conditional only and not absolute notwithstanding the fact that at such hearing the Governor had the right to subpœna witnesses, administer oaths, and possessed all powers in relation to such proceedings which are exercised "by any court or judge"(Correction Law, § 265).The court also stated (pp. 446, 447, 448): "The courts have refused, however, to apply the rule of absolute privilege to proceedings which, though official and public, are not in substance judicial (Proctor v. Webster, 16 Q. B. D. 112, 114;Royal Aquarium v. Parkinson [1892, 1 Q. B. 431], supra;Barrett v. Kearns [1905, 1 K. B. 504], supra;Blakeslee v. Carroll, 64 Conn., 223;Wright v. Lothrop, 149 Mass. 385, 390;Odgers on Libel and Slander, p. 233).In such cases the privilege is the qualified one that attaches to the honest assertion of a right or fulfillment of a duty * * *.We are not dealing here with statements made by witnesses required to attend a hearing (Prison Law, sects. 261, 262, 265): there is a distinction between the testimony of witnesses and voluntary complaints * * *.Our ruling is in harmony with the tendency of courts to restrict the scope of absolute privilege in libel".

So also in Leganowicz v. Rone(240 App. Div. 731) the Appellate Division, Second Department, held that a hearing before the Division of Licenses of the State of New York was not a judicial proceeding and that the charges, therefore, were not protected by an absolute privilege.The court pointed out, however, that they may have a qualified privilege.

In the case at bar, the defendant landlord made an application to the Temporary State Housing Rent Commission for permission to subdivide plaintiffs' apartment and in connection with that application made the alleged libelous statements.The rent commission is an administrative agency of the government engaged in establishing "maximum rents for housing accommodations."Under chapter 274 of the Laws of 1946 of the State of New York (as amd. by L. 1950, ch. 250), the commission is vested...