DWORKIN v. STATE (2006)

Appeal from an order of the Court of Claims (Hard, J.), entered April 12, 2005, which granted defendant's motion to dismiss the claim.

 Claimant, an attorney, represented an individual in a Court of Claims action who filed a claim seeking damages as a result of an alleged slip and fall on defendant's property.   In the course of discovery related to that matter, claimant indicated that he found defendant's response to certain demands to be inadequate and brought a motion to, among other things, compel the production of certain materials.   In his motion papers, claimant accused defendant, through its counsel, of repeated acts of misconduct, as well as, among other things, undertaking a “deliberat[e] attempt[ ] to thwart [claimant's client].”   Defendant's counsel, an Assistant Attorney General, cross-moved to strike the notices of deposition of claimant's client.   In the supporting affirmation, defendant's counsel provided an explanation for the alleged delays, which also stated:  “It is fair to say that statements by [claimant] are exaggerated and baseless.   The general tone of his motion papers seems to suggest a level of instability and paranoia on his part.” ¹

Thereafter, claimant brought this claim for damages alleging that he was defamed by the above statement.   Defendant then moved to dismiss the claim for failure to state a cause of action, arguing that the statement related to the litigation and, thus, was absolutely privileged.   The Court of Claims granted defendant's motion, prompting this appeal.

 Under the particular circumstances herein, we cannot say that the Court of Claims erred in dismissing the claim.   Significantly, “[i]n the context of a legal proceeding, statements by parties and their attorney are absolutely privileged if, 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], appeal 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 Seltzer v. Fields, 20 A.D.2d 60, 62-63, 244 N.Y.S.2d 792 [1963], affd. 14 N.Y.2d 624, 249 N.Y.S.2d 174, 198 N.E.2d 368 [1964] ).   A determination as to whether a statement is pertinent is “extremely liberal” (Grasso v. Mathew, supra at 479, 564 N.Y.S.2d 576).   Here, while the specific comments in the course of this vigorously contested matter may easily be described as “intemperate” (Baratta v. Hubbard, 136 A.D.2d 467, 469, 523 N.Y.S.2d 107 [1988] ), they, nonetheless, meet the “minimal possibility of pertinence or the simplest rationality” (Mosesson v. Jacob D. Fuchsberg Law Firm, 257 A.D.2d 381, 382, 683 N.Y.S.2d 88 [1999], lv. denied 93 N.Y.2d 808, 691 N.Y.S.2d 382, 713 N.E.2d 417 [1999] ) and, therefore, must be considered privileged (see Baratta v. Hubbard, supra at 469, 523 N.Y.S.2d 107).

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The Court of Claims ultimately denied claimant's motion for sanctions in that matter and partially granted defendant's cross motion for certain relief.

CARDONA, P.J.

SPAIN, MUGGLIN, LAHTINEN and KANE, JJ., concur.