Jeffrey Rabiea, appellant, v. Alan C. Stein, et al., respondents. (2010)

Submitted-December 4, 2009

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered January 2, 2009, as granted those branches of the motion of the defendants Alan C. Stein and Alan C. Stein, P.C., and the separate motion of the defendant Valley Forge Flag Company, which were pursuant to CPLR 3211(a)(7) to dismiss the first cause of action to recover damages for defamation insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

A statement made by counsel during a judicial proceeding, even if made with malice or bad faith, is protected by absolute privilege as long as the statement may, in some way, be considered pertinent to the litigation (see Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d 163, 171;  see also Martirano v. Frost, 25 N.Y.2d 505, 507;  Impallomeni v Meiselman, Farber, Packman & Eberz, 272 A.D.2d 579).   Here, accepting the allegations in the complaint as true and resolving all inferences in favor of the plaintiff (see Leon v. Martinez, 84 N.Y.2d 83, 87-88), the complaint fails to state a cause of action against the defendants to recover damages for defamation, as the statements in issue were made between counsel in a judicial proceeding as a pertinent part of settlement negotiations and therefore are protected by an absolute privilege (see Papa v. Regan, 256 A.D.2d 452;  Vodopia v. Ziff-Davis Publ. Co., 243 A.D.2d 368;  Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d at 176-178;  Grasso v. Mathew, 164 A.D.2d 476).

In light of our determination, we need not address the parties' remaining contentions.

MASTRO, J.P., FISHER, BELEN and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court