Levy v. State

Order, Court of Claims (Weisberg, J.), entered February 3, 1981, reversed, on the law, and the defendant-appellant’s motion to dismiss the complaint granted, without costs. Plaintiff, a former Assistant District Attorney who injected himself in behalf of a criminal defendant in the latter’s prosecution, has sued appellant State for alleged defamation in papers filed in the criminal prosecution by an Assistant Attorney-General (Office of the Special Prosecutor), in response to those submitted by plaintiff herein. As to individual defendants in this suit, dismissal of the complaint was proper, but it should have been dismissed as to the State on the basis of the prosecutor’s — hence the State’s — absolute immunity from civil suit when acting within his official capacity. The described statements were made, in the circumstances depicted, not alone in the prosecutor’s official capacity and within the scope of his duty, but, being in response to plaintiff-respondent’s submission in a case prosecuted by the Attorney-General, were pertinent to the ongoing litigation, even though being, as characterized by the court, no more than a demurrer. The prosecutor is immune; whether he has acted as litigant, by virtue of his office, or as an elected official, the immunity is complete. (See Broughton v City of New York, 95 Misc 2d 807; Brenner v County of Rockland, 67 AD2d 901; Cunningham v State of New York, 71 AD2d 181; Karelas v Baldwin, 237 App Div 265.) Concur — Ross, J. P., Markewich, Lupiano and Bloom, JJ.