Opinion
July 10, 1967
In an action to recover damages for libel, plaintiff appeals from an order of the Supreme Court, Westchester County, dated October 18, 1966, which dismissed the amended complaint on defendants' motion pursuant to CPLR 3211. Order affirmed, with $10 costs and disbursements. Plaintiff and defendants are attorneys. The alleged libel was contained in an affidavit made by one of the defendants as attorney for the respondent in a proceeding pending in the Family Court in which the petitioner was represented by plaintiff. The affidavit was submitted in support of respondent's motion in the Family Court for an order "(a) staying the Petitioner and her attorney from taking any further steps in the instant proceedings or from initiating any other proceeding for support pursuant to Article 4 of the Family Court Act * * * and (b) directing that the file herein be turned over to [the] Bar Association of the City of New York for whatever appropriate proceeding it may be advised to take herein against counsel for Petitioner". The statement complained of by plaintiff charged that certain allegations by petitioner were false and perjurious and that "if petitioner is guilty of perjury, her attorney herein is guilty of subornation of perjury." In our opinion, the statement was pertinent to the proceedings in the Family Court and was, therefore, absolutely privileged ( Andrews v. Gardiner, 224 N.Y. 440, 445). The language used did not go beyond the bounds of reason and was not so clearly impertinent and needlessly defamatory as to destroy the privilege (cf. People ex rel. Bensky v. Warden 258 N.Y. 55, 59, 60, 61; Youmans v. Smith, 153 N.Y. 214, 219-220; Feldman v. Bernham, 6 A.D.2d 498, affd. 7 N.Y.2d 772; Seltzer v. Fields, 20 A.D.2d 60, affd. 14 N.Y.2d 624). The cases relied upon by plaintiff, such as Wels v. Rubin ( 280 N.Y. 233) are distinguishable and, in our view, should be limited to their own facts. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Nolan, JJ., concur.