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Hinckley v. Resciniti

Appellate Division of the Supreme Court of New York, First Department
Mar 13, 1990
159 A.D.2d 276 (N.Y. App. Div. 1990)

Opinion

March 13, 1990

Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).


This action alleges that defendant, an attorney, made defamatory statements in affidavits in support of a motion for sanctions against plaintiff attorney, as a result of plaintiff's alleged abusive litigation tactics in an underlying action.

As the record demonstrates, the alleged defamatory statements were made in a judicial proceeding, were clearly "pertinent" to the motion against plaintiff seeking sanctions as a result of his conduct in the underlying action, and were thus "absolutely privileged". Accordingly, these statements cannot be the basis for this action alleging defamation. (Mack v Olsen, 90 A.D.2d 482.)

While plaintiff seeks Justice Santaella's recusal, there is no alleged bias or prejudice stemming from an extrajudicial source which would warrant her recusal. Justice Santaella's knowledge of the underlying suit is merely based upon her reading of the papers filed with the court. Accordingly, Justice Santaella appropriately denied the cross motion for recusal.

Based on the record, we do not conclude that plaintiff's commencement of this action was "frivolous" or in "bad faith", the stated grounds for the award (CPLR 8303-a). Consequently, we vacate the award of attorney's fees, costs and disbursements, and modify the order and the judgment accordingly.

Concur — Sullivan, J.P., Carro, Rosenberger, Kassal and Ellerin, JJ.


Summaries of

Hinckley v. Resciniti

Appellate Division of the Supreme Court of New York, First Department
Mar 13, 1990
159 A.D.2d 276 (N.Y. App. Div. 1990)
Case details for

Hinckley v. Resciniti

Case Details

Full title:GEORGE R. HINCKLEY, Appellant, v. S. EDMUND RESCINITI, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 13, 1990

Citations

159 A.D.2d 276 (N.Y. App. Div. 1990)
552 N.Y.S.2d 278

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