Appellate Division, Second Department, Rules That Statements Made In A Judicial Or A Quasi-Judicial Action Are Absolutely Privileged

I am not an attorney, but to me, the ruling of the Second Department means that anyone can lie about you when they testify at a proceeding - even an administrative hearing such as a 3020-a - and this person cannot be held liable for slander.

Send me your thoughts at betsy.combier@gmail.com

Betsy Combier

Statements made in the course of a judicial or quasi-judicial proceeding are absolutely privileged

Matter of Gaeta v Incorporated Village of Garden City, 2010 NY Slip Op 02950, Decided on April 6, 2010, Appellate Division, Second Department

Sometimes a party will file a lawsuit contending that he or she was slandered* in the course of a judicial or a quasi-judicial action such as an administrative hearing.

Frank Gaeta attempted to initiate such a lawsuit alleging slander. The allegedly slanderous statements, however, were made by a police officer during his testimony upon cross-examination at a criminal trial, and, said the court, were pertinent and material to the cross-examination and the subject matter of the proceeding.

In the course of dismissing Gaeta’s petition to file a “late notice of claim” upon the Village, the Appellate Division commented that “Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.”

* Oral statements may constitute slander; written statements may constitute libel.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_02950.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

2010 N.Y. App. Div. LEXIS 2897,*;2010 NY Slip Op 2950;
897 N.Y.S.2d 653

In the Matter of Frank Gaeta, respondent, v Incorporated Village of Garden City, et al., appellants. (Index No. 3284/09)

2009-07298

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2010 NY Slip Op 2950; 897 N.Y.S.2d 653; 2010 N.Y. App. Div. LEXIS 2897

April 6, 2010, Decided

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL: [*1] Cullen and Dykman LLP, Garden City, N.Y. (Elizabeth Iovino of counsel), for appellants.

Frederick J. Martorell, Brooklyn, N.Y., for respondent.

JUDGES: WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, LEONARD B. AUSTIN, JJ. MASTRO, J.P., DICKERSON, BELEN and AUSTIN, JJ., concur.

OPINION

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Nassau County (Iannacci, J.), entered June 1, 2009, which granted the petition.

ORDERED that the order is reversed, on the law, with costs, and the petition is denied.

While the merits of a claim ordinarily are not considered on a motion for leave to serve a late notice of claim, where the proposed claim is patently without merit, leave to serve a late notice of claim should be denied (see Matter of Catherine G. v County of Essex, 3 NY3d 175, 179, 818 N.E.2d 1110, 785 N.Y.S.2d 369; Matter of Besedina v New York City Tr. Auth., 47 AD3d 924, 925, 850 N.Y.S.2d 199; Matter of State Farm Fire & Cas. Co. v Village of Bronxville, 24 AD3d 453, 805 N.Y.S.2d 651).

Here, the petitioner sought leave to serve a late notice of claim alleging slander. The allegedly slanderous statements, however, were made by Police Officer Errol [*2] Wedra during his testimony upon cross-examination at a criminal trial, and were pertinent and material to the cross-examination and the subject matter of the proceeding (see Harper v Farensbach, 8 AD3d 341, 777 N.Y.S.2d 711; Walton v Markan, 262 AD2d 478, 479, 692 N.Y.S.2d 150; Romeo v Village of Fishkill, 248 AD2d 700, 670 N.Y.S.2d 772; Allan & Allan Arts v Rosenblum, 201 AD2d 136, 615 N.Y.S.2d 410, cert denied 516 U.S. 914, 116 S. Ct. 301, 133 L. Ed. 2d 207). Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding (see Rosenberg v Metlife, Inc., 8 NY3d 359, 365, 866 N.E.2d 439, 834 N.Y.S.2d 494; Ingber v Mallilo, 52 AD3d 569, 570, 860 N.Y.S.2d 180; Rufeh v Schwartz, 50 AD3d 1002, 1004, 858 N.Y.S.2d 194; Sinrod v Stone, 20 AD3d 560, 561, 799 N.Y.S.2d 273; Matter of Dunn v Ladenburg Thalmann & Co., 259 AD2d 544, 545, 686 N.Y.S.2d 471).

Accordingly, the petition for leave to serve a late notice of claim alleging slander should have been denied.

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