Goldwater v. Merchants Importing Inc.

6 A.D.2d 777, 174 N.Y.S.2d 537, 1958 N.Y. App. Div. LEXIS 5610

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1958
• Status: Published

Opinion

In this action, the plaintiff alleges that he was libelled by the defendants because in a complaint in an action by the corporate defendant against a bonding company, wherein it sought recovery under a bond protecting it for shortages resulting from the acts of dishonest employees, he was accused of being one of the employees so characterized and was specifically named in the bond. The defendants, claiming that the pleading upon which the libel is predicated is absolutely privileged, appeal from a denial of their motion to dismiss the first cause of action for legal insufficiency. Defamatory matter contained in a pleading or used in the course of a judicial proceeding, if relevant and pertinent to the issues, is absolutely privileged. It is only when the language used is clearly impertinent or beyond the scope of the issues involved that the privilege is lost. (People ex rel. Bensky v. Warden, 258 N. Y. 55; Youmans v. Smith, 153 N. Y. 214, 219; Chapman v. Dick, 197 App. Div. 551; 53 C. J. S., Libel and Slander, pp. 173-175.) The allegations in the pleading which the plaintiff asserts are defamatory are pertinent to the issues raised in that action. Under the circumstances, the defense of privilege is insurmountable. The order of Special Term is reversed on the law, and the motion to dismiss the first cause is granted, with costs to appellants. Concur — Botein, P. J., Breitel, M. M. Frank, Me Nally and Bastow, JJ.