Williams v. Williams

• Decision Date: 12 December 1966
• Citation: 27 A.D.2d 550,275 N.Y.S.2d 425
• Parties: Richard H. WILLIAMS, Respondent, v. Robert W. WILLIAMS et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 425

275 N.Y.S.2d 425

27 A.D.2d 550

Richard H. WILLIAMS, Respondent, v. Robert W. WILLIAMS et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Dec. 12, 1966.

Before BELDOCK, P.J., and UGHETTA, RABIN, BENJAMIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for libel and other tortious conduct, defendants appeal from an order of the Supreme Court, Queens County, dated April 12, 1966, and entered in Nassau County April 15, 1966, which denied their motion to dismiss the complaint pursuant to CPLR 3211.

Order affirmed, with $10 costs and disbursements.

Liberally construed, the first cause of action alleges that defendant Robert W. Williams caused a corporation to institute a false, defamatory action against plaintiff, not with the intention of prosecuting it as a lawsuit, but solely for the purpose of ruining plaintiff's business reputation by widespread publication of the accusations made against plaintiff in that action; and that both defendants accomplished such improper purpose by deliberately and maliciously mailing copies of the defamatory complaint to many others in plaintiff's trade. In our opinion, such allegations sufficiently plead abuse of process, since they charge the misuse of legal process to accomplish an improper, collateral purpose (Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E. 229; Hauser v. Bartow, 273 N.Y. 370, 373--374, 7 N.E.2d 268, 269--270). Further, if it were assumed Arguendo that such allegations do not plead the classic tort of abuse of process, we would nevertheless hold that they sufficiently spell out a cognizable tort for which the law will provide a remedy (see Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759; Keller v. Butler, 246 N.Y. 249, 254, 158 N.E. 510, 511, 55 A.L.R. 349).

The second cause of action, repeating the allegations of the first, is couched in the form of an ordinary libel action. Defendants contend that it is insufficient on its face because their mailing of the complaint to numerous persons in the trade was nothing more than 'a fair and true report' of a judicial proceeding, which is protected by section 74 of the Civil Rights Law. We disagree. In our opinion, the protection of that statute does not extend to a case where an action is brought solely for the purpose of ruining a person's reputation, and the defamatory complaint in that action is then with malice widely circulated by the defamer himself (here, with a codefendant) in order to accomplish such improper purpose. Such publication of the complaint is not 'a fair and true report' of a judicial proceeding within the ambit of the statute. Nor is it a publication 'connected with the litigation' or 'during the course of' or 'as part of' a judicial proceeding. On the contrary, it is an excessive unconnected publication which is not cloaked with either a statutory or a common-law privilege (see Seltzer v. Fields, 20 A.D.2d 60, 63--64, 244 N.Y.S.2d 792, 796--797, affd. 14 N.Y.2d 624, 249 N.Y.S.2d 174, 198 N.E.2d 368).

Defendants cite Lewis v. Chemical Foundation, 262 N.Y. 489, 188 N.E. 33 and Oglesby v. Cranwell, 250 App.Div. 720, 293 N.Y.S. 67 as authority for the contention that their publication of the defamatory complaint was privileged. Both are distinguishable from the case at bar. In Lewis, the primary publication of the slanderous statements made in a judicial proceeding was a story in a newspaper. That publication was, of course, a privileged 'fair and true report' of a judicial proceeding; and the slanderer (the defendant in the Lewis action) merely republished the 'fair and true report' in the newspaper by mailing copies of the newspaper to many persons. Far different is the case at bar, where there was never any 'fair and true report' of the defamatory action by disinterested outsiders, but only the primary and sole publication of it by defendants' malicious mailing, to numerous persons in the trade, of the complaint which defendant Williams had himself induced.

Oglesby, supra, was a motion to strike out several defenses pleaded in an answer. One of the assailed defenses pleaded privilege based upon a fair and true report of a judicial proceeding. Examination of the record in that case discloses that the defendant had brought a fraud action against the plaintiff and had then written a newspaper story describing the fraud action. Pleading the defense of privilege, the defendant alleged that the newspaper story was a fair and true report of a judicial proceeding, published in good faith, without malice and with reasonable cause to believe that the public was interested in the facts. We held that this defense was sufficient as a matter of pleading,...