Park Knoll Associates v. Schmidt

• Decision Date: 18 October 1982
• Citation: 454 N.Y.S.2d 901,89 A.D.2d 164
• Parties: PARK KNOLL ASSOCIATES, a limited Partnership, Respondent, v. Aphrodite SCHMIDT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 901

454 N.Y.S.2d 901

89 A.D.2d 164

PARK KNOLL ASSOCIATES, a limited Partnership, Respondent, v. Aphrodite SCHMIDT, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 18, 1982.

Ryan & Ryan, White Plains (Paula G.A. Ryan, White Plains, of counsel), for appellant.

Eaton, Van Winkle & Greenspoon, New York City (Charles G. Mills and Samuel N. Greenspoon, New York City, of counsel), for respondent.

Before WEINSTEIN, J.P., and O'CONNOR, THOMPSON and BOYERS, JJ.

BOYERS, Justice.

The principal issue on this appeal, which is one of first impression in this State, is whether allegedly libelous "tenant's statementof complaint" filed by individual tenants with the New York State Division of Housing and Community Renewal pursuant to the provisions of the Emergency Tenant Protection Act of 1974 (L.1974, ch. 576, § 4) and the regulations promulgated thereunder, and allegedly composed by defendant who concededly acted as scrivenor and/or advisor with regard to such documents, are protected by either an absolute or a qualified privilege. We hold today that the absolute immunity afforded to communications made to a body acting in a quasi-judicial capacity applies to the individual complaining tenants and extends to the defendant in her capacity as leader of the tenants' association. Therefore, the allegedly defamatory statements cannot serve as the basis for the imposition of liability.

Park Knoll Associates, a limited partnership and the plaintiff in this defamation action, owns, manages and operates a Westchester apartment complex known as Park Knoll. The defendant, Aphrodite Schmidt, resides at the subject premises and serves as President of Park Knoll Tenants Association, Inc., a not-for-profit corporation which represents Park Knoll tenants.

Plaintiff commenced this action against defendant on or about June 18, 1980. The complaint, which sets forth 10 causes of action for libel, alleges that defendant "designed to libel the plaintiff in its trade and business by falsely accusing it of violating the applicable law and regulations of the State of New York and of the Division of Housing and Community Renewal * * * and further falsely accusing the plaintiff of making perjurious statements to said Division."

Each cause of action alleges a libel published in March or April, 1980, and sets forth verbatim the communications complained of, which comprise portions of 10 "Tenant's Statementof Complaint" filed pursuant to the Emergency Tenant Protection Act of 1974 (ETPA) (L.1974, ch. 576, § 4; McKinney's Uncons.Laws of N.Y., Book 65, § 8621 et seq.). The complaint forms, which were furnished by the New York State Division of Housing and Community Renewal (the division), were received by the Office of Rent Administration, the entity designated by the Commissioner of the division to administer the ETPA (see Tenant Protection Regulations, § 3; 9 NYCRR 2500.3).

Each statement was affirmed by a different tenant of the Park Knoll complex. Seven of them are signed by defendant as "Aphrodite Schmidt. For example, the tenant's statement of complaint which is reproduced, in part, in plaintiff's first cause of action and a complete copy of which is annexed to the complaint, states in pertinent part:

"The RTP-25 form was represented as approval by your agency of the $390 rent being charged me. Please note that the landlord indicates that the prior tenant's rent was at $324.16 and that the lease was broken. Accordingly, Mrs. Schmidt advises me that only a 6% vacancy rate adjustment could be applied on the rental amount of the prior tenant's unexpired term. It would appear that my proper legal regulated rent should be at $349.61 per month. The prior tenant was a Robert Ucci who cannot be located and I ask that his lease and that of the prior tenants since 1974 be provided by the landlord for review. Mrs. Schmidt indicates to me that the prior tenant may have been overcharged, and that this possible circumstance has bearing on the proper base rent to me.

* * *

* * *

"In addition, Mrs. Schmidt advises me that the landlord was covered by insurance to restore the premises to its original condition and these costs cannot be passed on to the tenants.

* * *

* * *

"Mrs. Schmidt also advises me that the landlord has 'renovated' certain other 3 room apartments in the Park Knoll complex by replacing original 28 year old equipment in the kitchens and bathrooms and charged $359.50 for said apartments in excess of the allowable legal regulated rent, and that this matter of those tenants' complaints is pending with your agency." (Emphasis supplied.)

In six of the statements, the complaining tenant asks that defendant act as his or her representative "in all matters that not have full knowledge about as a new tenant", in the event a hearing "is requested by the landlord or deemed necessary". The statement that forms the basis of the eighth cause of action was "submitted with the assistance of the President of the Park Knoll Tenants Association" and in the tenth, the statement was "submitted with the assistance and preparation of Aphrodite Schmidt".

In each statement, the complaining tenant makes reference to advice furnished by defendant. While none of the 10 tenant's statements filed with the division specifically quotes remarks made by defendant, certain portions of the particular statements which mention defendant by name are followed by the phrases "advises me" or "indicates to me" or are preceded by the phrase "according to". Plaintiff did not sue any of the 10 tenants who filed a statement of complaint.

In October, 1980, defendant moved for summary judgment dismissing the complaint on the ground, inter alia, that "the alleged defamatory statements were privileged". By order dated February 10, 1981, Special Term (MARBACH, J.), denied the motion, observing with regard to defendant's claim of absolute privilege, that such "argument would have merit if it were the complaining tenants who were sued * * * and the statements contained in the various complaints were the basis for the action (Studley, Inc. v. Lefrak, 50 A.D.2d 162 )." Noting that plaintiff's action was based upon defendant's statements to the complaining tenants, which statements were later incorporated into the complaints filed by the tenants, Special Term reasoned that as it was the communications between the tenants and the division that formed the bases of the action, such communications were subject to a qualified, rather than an absolute, privilege. No appeal was taken from this order.

In April, 1981, plaintiff moved for an order of preclusion pursuant to CPLR 3126. Defendant then cross-moved pursuant to CPLR 3211 (subd. par. 7) to dismiss the complaint for failure to state a cause of action, or in the alternative, for a protective order. By order dated September 30, 1981, Special Term (GURAHIAN, J.), inter alia, denied defendant's cross motion, holding in part that the "subject complaint the requirements of particularity under CPLR rule ¹ It is from this order that defendant appeals.

Initially, we observe that the prior order of Special Term from which no appeal was taken constitutes no impediment to review by this court. It is well established that "doctrine of law of the case does not apply in an appellate court where the prior order was made by a court of subordinate jurisdiction from which no appeal was taken" (Di Fresco v. Starin, 81 A.D.2d 629, 630, 438 N.Y.S.2d 126; see Klein v. Smigel, 44 A.D.2d 248, 354 N.Y.S.2d 117, affd. 36 N.Y.2d 809, 370 N.Y.S.2d 897, 331 N.E.2d 679; see, also, Martin v. City of Cohoes, 37 N.Y.2d 162, 371 N.Y.S.2d 687, 332 N.E.2d 867, on remand 50 A.D.2d 1035, 377 N.Y.S.2d 757, app. dsmd. and mot. for lv. to app. den. 39 N.Y.2d 740, 384 N.Y.S.2d 774, 349 N.E.2d 875; 10 Carmody-Wait 2d, New York Prac., § 70:406). Insofar as the prior order determined that this libel action was based upon defendant's statements to the complaining tenants, it was erroneous. Such a claim is not contained in the complaint; rather, it is plaintiff's contention that defendant "composed and published" and is the author, both as to content and form, of the actual statements of complaint filed by the 10 Park Knoll tenants with the division. In accordance with the procedural law of this State (see CPLR 3016, subd. ), the alleged defamatory words are quoted verbatim in the complaint. The action sounds in libel even as to those forms not designated as having been prepared by defendant, but which were allegedly written by the tenant as a result of defendant's conduct. Where a defamatory statement is oral, but is expected by the speaker to be reduced to writing and published, and is subsequently communicated in written form, such statement constitutes a libel (Sack, Libel and Slander and Related Problems, § II.3, p. 44 ).

Public policy considerations require that certain defamatory communications are either absolutely or qualifiedly (conditionally) privileged (see Sack, § VI.1, p. 267 et seq.; Prosser, Torts § 114; Restatement, Torts 2d, § 583 et seq.; see, also, 50 Am.Jur.2d, Libel and Slander, § 192). "The difference between the two rests in the role of malice. A qualified privilege is * * * available only in the absence of malice, while an absolute privilege, a veritable immunity, is impervious to proof, and therefore to a charge, of malice (Andrews v. Gardiner, 224 N.Y. 440, 446 (Stukuls v. State of New York, 42 N.Y.2d 272, 275, 397 N.Y.S.2d 740, 366 N.E.2d 829). Indeed, while generally the defense of privilege must be pleaded in an answer, where communications are absolutely privileged, such defense need not be interposed (5 Carmody-Wait 2d, New York Prac., § 30:67).

The threshold question is whether, for the purposes of this analysis, the statements of complaint are subject to a privilege and, if so, whether it is an absolute or qualified privilege. The former, founded upon public policy considerations favoring free expression, affords...