Were Defamatory Statements Absolutely Privileged?
Jonathan Davidoff sued Dina S. Kaplan and Eric Dorfman for defamation.
Kaplan, an attorney, represented Dorfman in a divorce action. Kaplan allegedly represented to the court in the divorce action, including court personnel, that Davidoff, an attorney and a nonparty to the divorce action, was the boyfriend of Dorfman’s wife. In an email exchange between Kaplan and Herbert Adler, an attorney representing Dorfman’s wife in the divorce action, Kaplan allegedly made a defamatory statement about Davidoff, referring to him as a “wife beater . . . who is in criminal prosecution.” In addition to Adler, the email was sent to court personnel and other attorneys.
Davidoff sued to recover damages for defamation per se (first cause of action) and defamation (second cause of action). Kaplan moved to dismiss the first and second causes of action, arguing that her alleged defamatory statement was protected by the absolute privilege for statements made in the course of a judicial proceeding. Supreme Court denied the motion. And Kaplan appealed.
The elements of a cause of action to recover damages for defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se. A false statement constitutes defamation per se if it charges another with a serious crime or tends to injure another in his or her trade, business, or profession.
A statement made at any stage of a judicial proceeding in communications among the parties, witnesses, counsel and the court, regardless of the motive with which it was made, is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation. The test of pertinency to the litigation is extremely liberal, so as to embrace anything that may possibly or plausibly be relevant or pertinent– and any doubt should be resolved in favor of upholding the privilege.
Here, under the extremely liberal test of pertinency, Kaplan’s statement allegedly referring to the Davidoff as a “wife beater . . . who is in criminal prosecution” was pertinent to the divorce action and, thus, was absolutely privileged. The email exchange between Kaplan and Adler was initially focused on a dispute over Dorfman’s financial ability to pay his wife maintenance and child support. The conversation turned, however, to the behavior of the parties to the divorce action while caring for their children. And Kaplan’s statement that Davidoff is a “wife beater . . . who is in criminal prosecution” was responsive and therefore relevant to the issue of the parties’ behavior. Under the circumstances, it cannot be said that the statement was so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame Davidoff who was not among the participants in the conversation, was not otherwise mentioned in the email exchange, and was not even directly identified in the statement.
Kaplan’s alleged defamatory statement was protected by the absolute privilege for statements made in a judicial proceeding. So Supreme Court should have granted Davidoff’s motion to dismiss.