PECK v. PECK (2020)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about May 25, 2019, which, in the defamation action, granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs. Order, Surrogate's Court, New York County (Nora S. Anderson, S.), entered on or about February 13, 2019, which denied the motion to intervene, unanimously affirmed, with costs.

In the defamation action, Supreme Court correctly concluded that the alleged defamatory statements about plaintiff made by defendant in affidavits in support of her motion for summary judgment in lieu of complaint (CPLR 3213) are not “obviously impertinent” to the judicial proceedings in which they were made and therefore are absolutely protected by the judicial proceedings privilege (see Sexter & Warmflash, P.C. v. Margrabe, 38 A.D.3d 163, 171–173, 828 N.Y.S.2d 315 [1st Dept. 2007]). Nor is this a case in which the underlying lawsuit was a sham action brought solely to defame defendant (see Flomenhaft v. Finkelstein, 127 A.D.3d 634, 638, 8 N.Y.S.3d 161 [1st Dept. 2015]).

The Surrogate correctly denied the motion to intervene brought by the property guardian of the infants, since, in the absence of the filing of objections to the probate of the will, the infants are not interested parties who have standing to participate in the probate proceedings. Nor did the Surrogate improvidently exercise her discretion in denying intervention based on any purported inadequately represented interest of the infants in the summary proceedings to recover on the notes.