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DI TULLIO v. DEACY

Supreme Court, Special Term, Bronx County
Sep 4, 1958
16 Misc. 2d 565 (N.Y. Sup. Ct. 1958)

Summary

denying absolute privilege to "unsolicited communications made by persons not directly involved in the litigation ... not acceptable as evidence."

Summary of this case from Matchett v. Stark

Opinion

September 4, 1958

Rocco L. Moles for defendants.

Bleakley, Platt, Walker, Hart Fritz for plaintiffs.


Motion to dismiss under rule 106 of the Rules of Civil Practice for failure of plaintiffs to state in the complaint facts sufficient to constitute a cause of action.

Defendant is accused by the plaintiffs of making certain defamatory statements in a letter addressed to the clerk of the Municipal Court, Second District, The Bronx. The letter was submitted prior to trial, in connection with a small claims matter, in which defendant presumably, as an expert attempted to fortify the position of the defendant in the Municipal Court action. It is the defendant's contention that since the letter was pertinent to the case in court the action was barred on the ground of privilege.

It is established law in this jurisdiction that all statements contained in documents and pleadings pertinent to the issues of a court proceeding are absolutely privileged upon the ground of public policy. ( People ex rel. Bensky v. Warden, 258 N.Y. 55. ) This rule has been liberally construed so as to afford its protection not only to formal pleadings and affidavits, but also to communications between parties to the action and their attorneys. (See Zirn v. Collum, 187 Misc. 241.)

It is the opinion of the court, however, that the rule of absolute privilege was never meant to apply to unsolicited communications made by persons not directly involved in the litigation, officiously made and not acceptable as evidence. To hold otherwise would open the door wide for abuse detrimental to the public policy the rule is intended to serve.

Motion to dismiss is, therefore, denied.


Summaries of

DI TULLIO v. DEACY

Supreme Court, Special Term, Bronx County
Sep 4, 1958
16 Misc. 2d 565 (N.Y. Sup. Ct. 1958)

denying absolute privilege to "unsolicited communications made by persons not directly involved in the litigation ... not acceptable as evidence."

Summary of this case from Matchett v. Stark
Case details for

DI TULLIO v. DEACY

Case Details

Full title:CONSTANTINO DI TULLIO et al., Plaintiffs, v. WILLIAM H. DEACY et al.…

Court:Supreme Court, Special Term, Bronx County

Date published: Sep 4, 1958

Citations

16 Misc. 2d 565 (N.Y. Sup. Ct. 1958)
183 N.Y.S.2d 585

Citing Cases

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None of the authorities relied upon by Nair impose a further condition that the alleged defamer possess some…

Matchett v. Stark

Courts are reluctant to extend the cloak of absolute privilege to cases that would not further these…