Simon v. Stim , 176 N.Y.S.2d 475 ( 1958 )

D. Ormonde Ritchie, J.

The defendant makes this motion pursuant to the Rules of Civil Practice for an order dismissing the complaint and granting judgment in his favor.

Two causes of action are set forth in the complaint alleging publication of libelous statements made by the defendant, an attorney, concerning plaintiff. The first cause of action complains of a statement made in an affidavit verified by defendant. The second cause of action complains of a statement made in a letter signed by defendant and addressed to a Justice of this court.

Issue has been joined in the action by the service of an answer containing affirmative defenses and a reply has been served thereto. The pleadings reveal that the affidavit was prepared and verified by the defendant and submitted by him to the court in connection with proceedings brought pursuant to section 793 of the Civil Practice Act, in which the plaintiff was a party. The letter was written and mailed by defendant to a Justice of this court accompanied by a proposed counter order in the proceeding prepared and submitted by defendant. The letter urged that the counter order submitted by defendant be signed and called attention to a statement made by plaintiff in an affidavit filed in voluntary^ bankruptcy proceedings instituted by plaintiff in the Federal court.

The alleged libelous statements were made in a proceeding in this court. They were relevant to the proceeding and were made by the defendant in furtherance of the interests of his clients. Such statements are absolutely privileged and cannot form the basis of a cause of action for libel. Where made in a proceeding or action the privilege is not limited to pleadings and affidavits in the proceedings or to statements made by the parties or their attorneys in open court. If made in letters between the parties or their attorneys or addressed to the court in connection with the proceeding they are likewise privileged provided they are pertinent thereto. (Zirn v. Gullom, 187 Misc. 241.)

The complaint is dismissed and judgment granted in favor of defendant.