Opinion
519549
06-18-2015
John C. McPHILLIPS, Appellant, v. STATE of New York, Respondent.
Oliver Law Office, Albany (Lewis B. Oliver Jr. of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Oliver Law Office, Albany (Lewis B. Oliver Jr. of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY and ROSE, JJ.
Opinion
GARRY, J.Appeal from an order of the Court of Claims (DeBow, J.), entered January 22, 2014, which, among other things, denied claimant's motion to amend the claim.
In August 2009, claimant, a physician working for the Department of Corrections and Community Supervision, treated an inmate who, while under claimant's care and in the Department's custody, died of heatstroke in the course of a run required as a part of his participation in the shock incarceration program. An investigation into the cause of the inmate's death was commenced by the Commission of Correction Medical Review Board. The reported findings included a recommendation that administrative action be taken against claimant for his refusal to provide a refill of Albuterol Metered Dose Inhaler to the inmate, who had a history of asthma.
In August 2010, the inmate's estate commenced an action against various state actors alleging, among other things, medical malpractice (hereinafter referred to as the malpractice litigation). In November 2010, claimant, not yet a named defendant in the malpractice litigation, sent a letter to an Assistant Attorney General (hereinafter the AAG) acting as counsel for the defendants in the malpractice litigation, denying his responsibility for the inmate's death and explaining his response to the Medical Review Board's report. Claimant also provided a copy of this letter to the Commission of Correction and others. A memorandum responding to the contentions in claimant's correspondence was then prepared by an individual apparently employed within the Commission of Correction, and was sent to the Commissioner of the Medical Review Board (hereinafter the Commissioner). This memorandum controverted claimant's assertion that the inmate hid inhaler overuse in markedly strong language, stating that this was “pure nonsense and demonstrates biases against the incarcerated,” and, further, that claimant's allegation “that [the inmate] was abusing Albuterol as an illicit drug substitute is completely crazy and to my knowledge there are no drug treatment programs for Albuterol use.”
At some point after the malpractice litigation had commenced, the AAG sent this memorandum to opposing counsel in that action, who, in turn, forwarded it to the Daily News. The Daily News then ran a story mentioning claimant by name and disclosing the contents of the memorandum. After reading the Daily News article, but not knowing who had made the underlying statements, claimant initially filed a notice of claim against defendant. Thereafter, claimant filed this notice of claim against defendant and the Commissioner, alleging that the Commissioner had disclosed information about the treatment that claimant had provided to the inmate to the Daily News reporter. Upon subsequently discovering that the source of the published statements was in fact not the Commissioner, claimant then moved to amend his claim to reflect the theory that the memorandum contained statements that amounted to libel per se, and that the AAG's disclosure of it to opposing counsel in the malpractice litigation was a libelous act, under a republication theory. The Court of Claims denied claimant's motion on the ground that the proposed amendment is nonmeritorious, as barred by the absolute immunity accorded counsel in judicial proceedings. Claimant appeals.
The claim against the Commissioner was ultimately dismissed.
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We affirm. Statements made by parties and their counsel in the context of a legal action or proceeding are protected by an absolute privilege so long as, “by any view or under any circumstances, they are pertinent to the litigation” (Grasso v. Mathew, 164 A.D.2d 476, 479, 564 N.Y.S.2d 576 [1991], lv. dismissed 77 N.Y.2d 940, 569 N.Y.S.2d 613, 572 N.E.2d 54 [1991], lv. denied 78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443 [1991] ; see Adamski v. Romano–Schulman, 56 A.D.3d 1078, 1079, 867 N.Y.S.2d 356 [2008] ). Allowing such statements or writings to form the basis of an action for defamation “would be an impediment to justice, because it would hamper the search for truth and prevent making inquiries with that freedom and boldness which the welfare of society requires” (Youmans v. Smith, 153 N.Y. 214, 220, 47 N.E. 265 [1897] ; see Allan & Allan Arts v. Rosenblum, 201 A.D.2d 136, 138–139, 615 N.Y.S.2d 410 [1994], lv. denied 85 N.Y.2d 921, 627 N.Y.S.2d 319, 650 N.E.2d 1321 [1995], cert. denied 516 U.S. 914, 116 S.Ct. 301, 133 L.Ed.2d 207 [1995] ). A liberal standard guides the inquiry of what is pertinent (see Lesser v.
International Trust Co., 175 App.Div. 12, 16, 161 N.Y.S. 624 [1916] ), and encompasses “any statement that may possibly or plausibly be relevant or pertinent, with the barest rationality” (Joseph v. Larry Dorman, P.C., 177 A.D.2d 618, 619, 576 N.Y.S.2d 588 [1991] ; see Black v. Green Harbour Homeowners' Assn., Inc., 19 A.D.3d 962, 963, 798 N.Y.S.2d 753 [2005] ). Moreover, the burden rests with claimant “to conclusively, and as a matter of law, establish the impertinency and the irrelevance of the statement” (Grasso v. Mathew, 164 A.D.2d at 479, 564 N.Y.S.2d 576 ).
Here, claimant asserts that the memorandum was prepared by a nonparticipant to the litigation which removes it from the protection of the absolute privilege; however, this contention ignores that claimant's action is grounded in the republication of the alleged defamatory statement by the AAG, whose statements are afforded the protection (cf. Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209, 464 N.Y.S.2d 424, 451 N.E.2d 182 [1983] ). It is evident that the AAG turned over the memorandum after the malpractice litigation had been commenced in federal court (see Front, Inc. v. Khalil, 24 N.Y.3d 713, 718–720, 4 N.Y.S.3d 581, 28 N.E.3d 15 [2015] ) and, further, the statements in the memorandum were clearly pertinent to the malpractice litigation, as they concerned allegations that were relevant to the treatment of the inmate (see Hadar v. Pierce, 111 A.D.3d 439, 439, 974 N.Y.S.2d 399 [2013], lv. denied 23 N.Y.3d 904, 2014 WL 2521237 [2014] ; Lacher v. Engel, 33 A.D.3d 10, 15, 817 N.Y.S.2d 37 [2006] ; Star v. Simonelli, 76 A.D.2d 861, 861–862, 428 N.Y.S.2d 617 [1980] ). Accordingly, the AAG's disclosure of the document is shielded by absolute privilege (see Rabiea v. Stein, 69 A.D.3d 700, 700–701, 893 N.Y.S.2d 224 [2010] ; Cavallaro v. Pozzi, 28 A.D.3d 1075, 1077, 814 N.Y.S.2d 462 [2006] ), and claimant's motion to amend the claim was properly denied as the proposed cause of action had no merit (see Trupia v. Lake George Cent. School Dist., 62 A.D.3d 67, 68, 875 N.Y.S.2d 298 [2009], affd. 14 N.Y.3d 392, 901 N.Y.S.2d 127, 927 N.E.2d 547 [2010] ). In light of this determination, claimant's remaining contentions are rendered academic.
ORDERED that the order is affirmed, without costs.
LAHTINEN, J.P., McCARTHY and ROSE, JJ., concur.