Opinion
14854/03
03-30-2004
Richard T. Sinrod, Plaintiff, v. Judith Ellen Stone, ESQ., Defendant.
, J.
The following papers having been read on the motion:[numbered 1-6]
Defendant's motion to dismiss [CPLR 3211]...............................................1
Plaintiff's affirmation in Opposition............................................................2
Defendant's affirmation in Reply.................................................................3
Plaintiff's notice of motion to strike Answer [CPLR 3124, 3126]..............4
Defendant's cross motion for sanctions........................................................5
Plaintiff's affirmation in opposition..............................................................6
This action, setting forth 31 causes of action sounding in defamation, intentional infliction of emotional harm, malicious prosecution, abuse of process, and seeking an allocation of fees, is the fallout from a falling-out between two attorneys over fees. Over the course of nine years, the parties had a professional relationship under which they collaborated on various cases. In March, 2002, plaintiff severed the relationship, terminating defendant's services as trial counsel on several pending cases in which plaintiff had apparently been counsel of record. When the parties could not come to an agreement on fees to which defendant claimed entitlement, war erupted. Defendant not only made application in two cases for retaining liens, but moved in two other cases to discharge plaintiff as counsel of record, and further, initiated three separate disciplinary proceedings against the plaintiff with the New York Grievance Committee. The Grievance Committee dismissed all three proceedings in 2003. Plaintiff then commenced this action, claiming that in these various Grievance Committee and court proceedings which defendant allegedly initiated, defendant wilfully, maliciously and falsely charged that plaintiff was mentally, physically and emotionally unfit to practice law, and that he had engaged in various acts of unprofessional conduct, willful misconduct, and criminal practices, all for the purpose of destroying his good name and reputation as an act of extortion and revenge.
Defendant now moves the court for an order dismissing 31 of the 32 causes of action pursuant to CPLR 3211 on grounds that the allegedly defamatory statements, all of which were made in judicial and quasi-judicial proceedings, are absolutely privileged. Further, defendant argues that these claims are not plead with sufficient particularity. Defendant also argues that that the complaint fails to state causes of action for malicious prosecution and intentional infliction of emotional harm because the requisite elements of those claims are lacking. Defendant does not seek to dismiss the one remaining cause of action seeking a court determination regarding allocation of attorneys fees. Plaintiff cross- moves to strike defendant's answer by reason of a failure to respond to various discovery demands, and for sanctions. Defendant, hurling stones from a glass house, cross-moves to sanction the plaintiff for being a "vexatious litigant."
In defense of the causes of action sounding in defamation, plaintiff argues that any judicial privileges have been waived by reason of defendant's malicious abuse of that privilege. Alternatively, plaintiff argues, the privilege has been waived by reason of the defendant having violated the confidentiality requirements of Judiciary Law section 90(10), which provides that "all papers, records, and documents upon...any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and deemed private and confidential," unless the Appellate Division, by written order, permits such information to be divulged.
In a similar case involving allegations of dishonesty and fraud asserted against an attorney, the Court of Appeals reiterated, and applied to Grievance Committee proceedings, the well established principle that statements made by counsel in "judicial proceedings" are absolutely privileged so long as such statements are material and pertinent to the questions involved, irrespective of the motive. Weiner v. Weintraub, 22 NY2d 330. In the instant case, even if the defendant's charges that plaintiff was incompetent and engaged in dishonest, criminal and unethical conduct were maliciously and vindictively made, claims of this nature are certainly material and relevant to the question of whether or not an attorney is fit to practice law or should be disciplined. The public interest in maintaining high standards among members of the bar, and the necessity that persons be given a forum in which to lodge complaints without fear of being sued for libel, warrants that absolute privilege be maintained, even at the risk that some attorneys will be falsely or maliciously accused of wrongdoing. Id., 332. Plaintiff points out that while the court in the Weiner decision upheld the privilege in consideration of the public interest, the court also noted (in dictum) that any risk of prejudice to attorneys' public reputation would, in any event, be protected by Judiciary Law section 90(10) which requires that confidentiality be maintained.
This court is now faced with a question of first impression: Whether or not a breach of confidentiality as required under Judiciary Law § 90(10) can operate as a waiver of absolute privilege regarding statements made in connection with attorney disciplinary proceedings.
As a threshold matter, the court rejects defendant's unsupported and untenable position that the confidentiality requirement of Judiciary Law section 90(10) applies only to the Grievance Committee itself. See, Johnson Newspaper Corporation v. Melino, 77 NY2d 1; Chartapaul, 271 AD2d 76; Hill v. Committee on Professional Standards of the Third Judicial Department, 2004 Slip Op 01440; 773 NYS2s 458; 5A Carmody-Wait 2d section 29:453 ["Complaint in action for unlawful arrest and imprisonment; misleading publication of confidential attorney disciplinary proceedings."]
This court is doubtful that the Court of Appeals intended to suggest that a violation of Judiciary Law section 90(10) would result in a waiver of the absolute privilege afforded to statements made to the Grievance Committee or within Committee proceedings, given the strong policy considerations which give greater weight to the public interest than to any individual attorney's reputation. No authority to support the interpretation suggested by the plaintiff has been offered to or found by this court. In another case very similar to this one, Capoccia v. Couch, 134 AD2d 806, one attorney filed a Grievance Committee complaint against another attorney who then commenced an action against him in which he asserted causes of action in conspiracy, malicious prosecution, libel, abuse of process and intentional infliction of emotional distress. The Third Department, following Weiner, held that to allow viability to any of these claims would have a chilling effect on a policy which encourages those with knowledge of an attorney's dishonest or unethical conduct to share that information with the Grievance Committee. The court noted that "the privilege is less susceptible of abuse by attorneys for complaints can in turn be lodged against them should they make false and reckless allegations." Likewise, in this case, the defendant could potentially be subject to disciplinary action if her complaints filed with the Grievance Committee were, in fact, false and malicious.
Therefore, it is the determination of this court that the first, second, third, fourth, twenty-first, twenty-second, twenty-seventh and thirty-first causes of action predicated on allegedly defamatory material contained in complaints filed with the State of New York Grievance Committee for the 10th Judicial District, are therefore barred by reason of the absolute privilege that attaches to statements made in quasi-judicial proceedings such as these.
A different question arises as to whether or not any absolute privilege attached to statements made not to or within but about pending disciplinary proceedings can be waived by reason of a breach of the confidentiality requirement of Judiciary Law section 90(10). The public policy considerations favoring absolute immunity do not carry the same determinative weight when the allegedly defamatory statements are made outside of the quasi-judicial forum that has been provided by statute for the protection of those interests. This State also has a strong policy in favor of protecting attorneys from irreparable harm to their reputations caused by unfounded accusations. Johnson Newspaper Corp., v. Melino, supra at p. 10. Indeed, when the allegedly defamatory statements are made about pending Grievance Committee proceedings and their factual basis outside of that administrative forum, without the prior written approval of the Appellate Division as required by Judiciary Law section 90(10), a question arises as to whether or not those statements, deemed "material and pertinent to the questions involved" in the disciplinary proceeding itself, necessarily remain so in another context. If in a particular case they do not, then the issue of waiver would be moot since the privilege would not attach in the first instance. Weiner v. Weintraub, supra.
This court believes that allegedly defamatory statements made outside the context of attorney disciplinary proceedings, concerning those proceedings or any claims upon which those proceedings are based, are not protected by absolute privilege when such statements violate the confidentiality requirement of Judiciary Law § 90 (10). No privilege is so absolute that its abuse, unmitigated by any countervailing public policy considerations, will not result in its waiver. For the following reasons, however, this belief is of no help to the plaintiff in this case.
In paragraphs "57" and "81" of the complaint, contained within the first and second causes of action, plaintiff complains that defendant "advised others of having filed" complaints with the Grievance Committee. A claim of publication of the mere fact of filing Grievance Committee complaints to unidentified persons at unidentified times and places is not sufficiently particular to state a claim under CPLR 3016(a), nor is such a publication defamatory because it is true. It is the content of "papers, records, and documents" that must be held confidential under the statute, not the fact of the filing.
Further, all of the remaining statements allegedly made in violation of the confidentiality requirement of Judiciary Law section 90(10), consisting of disclosure of the contents of and excerpts from the complaints before the Committee, were made in pleadings, affirmations, briefs and correspondence submitted in various court proceedings. (Seventh through tenth, thirteenth through twentieth, twenty-ninth and thirtieth causes of action). These statements and writings are absolutely privileged under the judicial immunity that attaches to those judicial proceedings independent of any other privileges that may or may not apply.
Likewise, absolute privilege attaches to the fifth, sixth, eleventh and twelfth causes of action because those statements and writings complained of (which make no reference to the Grievance Committee proceedings) were made in the course of affirmations and briefs filed in the course of judicial proceedings. Toker v. Pollak, 44 NY2d 211.
Turning to the remaining claims, the twenty-eighth cause of action based on an "agreement to agree" does not state any cognizable legal right of action.
The twenty-third through twenty-sixth causes of action sounding in defamation are predicated on the defendant having allegedly made statements to clients (Yamiski, Putterbaugh, Bent and Riggio) "to the effect that [they] should obtain other counsel because they were not being properly represented by plaintiff." The court finds that in the overall context of the relationships between the parties and their clients, such statements are reasonable susceptible of defamatory meaning and do not constitute personal opinion. See, Armstrong v. Simon and Schuster, 85 NY2d 373; Wasserman v. Haller, 216 AD2d 289. Such statements go directly to the plaintiff's professional reputation and thus constitute slander per se for which special damages need not be plead or proven. Nadrowski v. Wazeter, 29 AD2d 741, aff'd 23 NY2d 899. Moreover, plaintiff's allegations of malice, in the context of the pleading as a whole, are sufficient to state a claim sufficient to overcome any claim of qualified privilege for purposes of a motion addressed to the pleading. See, Afshari v. Barer, 1 Misc 2d 57. However, while plaintiff pleads with sufficient specificity the content of the allegedly slanderous comments, the twenty-third through twenty-sixth causes of action do not meet the specificity requirements of CPLR 3016(1) as to the time, place and manner of the defamatory remarks. Siriani v. Rafaloff, 284 AD2d 447.
With respect to claims which plaintiff claims to have set forth for intentional infliction of emotional harm, malicious prosecution, and abuse of process, the requisite elements of those causes of action have not been plead within any particular cause of action or within the four corners of the complaint.
Accordingly, on the basis of the foregoing, the defendant's motion to dismiss the first through thirty first causes of action in the complaint is hereby granted. With regard to the twenty-third through twenty-sixth causes of action for defamation, plaintiff is granted leave to re-plead with greater specificity within thirty (30) days after service of this order with notice of entry.
The motion and cross motion for sanctions are, in the court's discretion, denied. With regard to such discovery as may be relevant to the one remaining claim pertaining to the distribution of fees in escrow, the parties are directed to appear for a discovery and settlement conference in Part 12 on May 11, 2004 at 10:00 a.m. The conference will be held on the record and all participants are advised that ad hominem attacks or the use of invectives will, not may, result in the imposition of sanctions.
This constitutes the order of the court.
ENTER,
___________________________
J.S.C.