Summary
The Appellate Division, Third Department affirmed an order dismissing plaintiffs' defamation and attorney deceit claims against opposing counsel, holding that his in-court statements were absolutely privileged under the litigation privilege doctrine. The court also upheld the trial court's jurisdictional determination regarding Town Court and awarded costs for frivolous appellate conduct. The matter was remitted to determine the exact amount of counsel fees and expenses.
Topics
Practice areas
Questions Presented
- Whether the slander per se claim is barred by the absolute litigation privilege.
- Whether the attorney deceit claim is barred by the absolute litigation privilege.
- Whether the Supreme Court abused its discretion in dismissing the claims.
- Whether defendants are entitled to costs and sanctions.
Holdings
- The slander per se claim is dismissed because Devine's in‑court statements were absolutely privileged.
- The attorney deceit claim is dismissed because the statements were absolutely privileged.
- No abuse of discretion; the dismissal was proper.
- Defendants are awarded costs; sanctions are denied.
Key quotations
“a statement, made in open court in the course of a judicial proceeding, is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation” (*2)
“We therefore remit the matter to Supreme Court for the limited purpose of determining the value of such award.” (*3)
Factual background
Samuel J. Better, an attorney, is the sole member of two LLCs that owned an apartment rented by Ryan and Gabrielle Gifford. After the Giffords moved out, Better retained their security deposit and credits. The Giffords sued Better in Waterford Town Court; during that proceeding, attorney Terence Devine made statements alleging Better engaged in a self‑help eviction. Better later sued the Giffords and Devine in Supreme Court alleging defamation and attorney deceit.
Procedural history
Supreme Court dismissed the slander per se claim and the attorney deceit claim, partially granted costs to defendants, denied consolidation, and removed remaining causes of action against the Giffords to Waterwater Town Court. Plaintiffs appealed the order.
Remand instructions
Remit the matter to Supreme Court for the limited purpose of determining the value of such award.