Summary
holding that a witness who testifies before a judicial proceeding is entitled to immunity only if "the [challenged] statements [were] material or pertinent to the issues"
Summary of this case from Bio/Basics International Corp. v. Ortho Pharmaceutical Corp.Opinion
October 1, 1981
Order, Supreme Court, New York County (Blangiardo, J.), entered May 2, 1980, denying defendants' motion to dismiss plaintiff's complaint, unanimously reversed, on the law, without costs, and defendants' motion to dismiss granted. This action sounding in libel has its genesis in a prior action by plaintiff against her former husband for child support arrears. In the answer to that earlier complaint the former husband, represented by the codefendant, Irving Lederman, alleged in an affirmative defense in substance that plaintiff had lived an immoral life and had raised the children in an immoral and unduly permissive environment. The defendants moved to dismiss the complaint on the ground that these allegations, having been made in the course of a judicial proceeding, were privileged. Special Term denied the motion to dismiss. We disagree and reverse the order appealed from and grant the motion to dismiss. The principle is well established that oral and written defamation is privileged when made in the course of judicial proceedings if the statements are material or pertinent to the issues. (Feldman v. Bernham, 6 A.D.2d 498, affd 7 N.Y.2d 772.) It has been authoritatively held that the privilege, which extends to both the lawyer and the client (People ex rel. Bensky v. Warden of City Prison, 258 N.Y. 55, 60) "embraces anything that may possibly be pertinent" (Andrews v Gardiner, 224 N.Y. 440, 445). Applying this controlling standard, we are persuaded that the statements charged as actionable here are privileged notwithstanding their doubtful legal merit.
Concur — Sandler, J.P., Sullivan, Ross, Carro and Bloom, JJ.