Mosesson v. Jacob D. Fuchsberg Law Firm

• Decision Date: 07 January 1999
• Citation: 683 N.Y.S.2d 88,257 A.D.2d 381
• Parties: 1999 N.Y. Slip Op. 3 Gloria R. MOSESSON, Plaintiff-Respondent, v. The JACOB D. FUCHSBERG LAW FIRM, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 88

683 N.Y.S.2d 88

1999 N.Y. Slip Op. 3

Gloria R. MOSESSON, Plaintiff-Respondent, v. The JACOB D. FUCHSBERG LAW FIRM, et al., Defendants-Appellants.

Supreme Court, Appellate Division First Department.

Jan. 7, 1999.

J. Owen Zurhellen, III, for plaintiff-respondent.

Anne Richter, for defendants-appellants.

ROSENBERGER, J.P., NARDELLI, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered June 10, 1998, which, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.

Plaintiff brought this action against defendant law firm and two of its attorneys. She seeks damages for allegedly defamatory statements made by the individual defendants in two affidavits submitted in connection with an action entitled Matter of The Jacob D. Fuchsberg Law Firm v Stanley P. Danzig (Index No. 115347/95, Sup Ct, NY), in which defendant law firm sought to recover attorney's fees in connection with the settlement of a personal injury matter referred to the Danzig firm. The affidavits at issue were filed in support of an application to place settlement funds in a neutral escrow account pending the outcome of the fee dispute. Although neither affidavit mentions plaintiff by name, both make reference to an employee in Danzig's office who had entered a guilty plea to criminal charges arising out of the cashing of a $1,000,000 stolen check. The complaint alleges that plaintiff is the woman referred to in the affidavits but asserts that she has never taken a plea for cashing a stolen check, has never been charged with cashing a stolen check and has never been an employee of Danzig's law practice.

The Court of Appeals long ago established that a statement made in the course of legal proceedings is absolutely privileged if it is at all pertinent to the litigation (Youmans v. Smith, 153 N.Y. 214, 219, 47 N.E. 265). "Nothing that is said in the court room may be the subject of an action for defamation unless, this court has declared, it is 'so obviously impertinent as not to admit of discussion, and so needlessly defamatory as to warrant the inference of express malice' " (Martirano v. Frost, 25 N.Y.2d 505, 508, 307 N.Y.S.2d 425, 255 N.E.2d 693, quoting Youmans v. Smith, supra, at 220, 47 N.E. 265). As this Court has noted, all that is required for a statement to be privileged is a minimal possibility of pertinence or the simplest rationality (Seltzer v. Fields, 20 A.D.2d 60, 62, 244 N.Y.S.2d 792, affd. 14 N.Y.2d 624, 249 N.Y.S.2d 174, 198 N.E.2d 368). Any doubt...