NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-389
YURIY MARGULIS
vs.
DANIEL Z. RIVLIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment
dismissing his complaint following a motion judge's order
allowing the defendant's motion to dismiss on the grounds that
the plaintiff's allegations in the complaint are all protected
by the litigation privilege. The defendant is an attorney who
represented the ex-husband of the plaintiff's daughter during
New York divorce proceedings. We agree with the judge that the
communications and actions by the defendant referenced in the
complaint were made "during the course of" the New York divorce
proceedings, and that those communications and actions are
protected by the litigation privilege. We affirm. Background. In March 2015, divorce proceedings commenced
in New York between the plaintiff's daughter and her former
husband, David Bitton (Bitton). Bitton retained the defendant,
a New York licensed attorney, to represent him in the divorce
action. As part of that divorce action, the Supreme Court of
New York issued automatic court orders on March 23, 2015, which
provided in relevant part:
"Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties . . . ."
The automatic court orders were to remain in effect until the
divorce was finalized, which occurred on June 4, 2019.
Meanwhile, on May 16, 2019, the Boston law firm of Butters
Brazilian LLP (Butters), who represented Bitton in several
lawsuits against the plaintiff, recorded two mortgages on
Bitton's property in Newton. One was in the amount of $350,000,
securing attorney's fees owed to Butters, and another was in the
amount of $100,000, securing attorney's fees owed to the
defendant for services in representing Bitton in the New York
divorce.
Jade Real Estate Investments, LLC (Jade), owned by the
plaintiff, had obtained a real estate attachment against
Bitton's Newton property. In August 2020, the Superior Court
2 granted Jade an attachment increase on its previously held
$350,000 attachment to $476,951.12. 1 The court determined that
the second attachment "shall have a nunc pro tunc effective
date." In March 2022, in a separate action, the Superior Court
allowed the plaintiff's motion for an attachment on Bitton's
Newton property in the amount of $571,213.33. This attachment
was behind in priority to Jade's attachments and Butters's
mortgages.
On January 20, 2023, the plaintiff filed the present action
in Superior Court against the defendant for conspiracy,
negligent and reckless misrepresentation, fraud, and emotional
distress in connection with the defendant's actions, along with
Butters's, in obtaining mortgages on property owned by Bitton,
ahead in priority to "defraud" the plaintiff. In response, the
defendant brought a motion to dismiss alleging that the
plaintiff's claims were barred by the litigation privilege,
collateral estoppel, failure to name an indispensable party,
prematurity of claim, lack of personal jurisdiction, and failure
to state a plausible claim for relief. The Superior Court judge
allowed the defendant's motion on the grounds of the litigation
privilege but denied it on all other grounds. It is from this
dismissal that the plaintiff appeals.
1 Jade obtained the $350,000 attachment on Bitton's Newton property in November 2016.
3 Discussion. "We review the allowance of a motion to
dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). In conducting our review, we accept as true
all the facts alleged in the complaint and draw all reasonable
inferences in the plaintiff's favor. See Flagg v. AliMed, Inc.,
466 Mass. 23, 26 (2013), citing Marram v. Kobrick Offshore Fund,
Ltd., 442 Mass. 43, 45 (2004).
The crux of the complaint here pertains to actions by the
defendant relating to the New York divorce proceeding.
Specifically, the plaintiff alleged that the defendant made
numerous misrepresentations to the New York Supreme Court,
including that the defendant incorrectly testified to the number
of outstanding obligations on Bitton's property. 2 In the
complaint, the plaintiff further alleged that the defendant
conspired with Butters to "defraud" the plaintiff, including by
filing for attachments on Bitton's property in violation of the
automatic court orders issued by the New York Supreme Court.
The plaintiff's claims of infliction of emotional distress stem
from the defendant's actions in his alleged misrepresentations
and fraud in New York. Simply put, the complaint's allegations
relate to the New York divorce proceedings.
2 As another example, the plaintiff alleged that the defendant fabricated charges for communications with the plaintiff's attorney that did not occur.
4 The litigation privilege protects "statements by a party,
counsel or witness in the institution of, or during the course
of, a judicial proceeding . . . provided such statements relate
to that proceeding." Sriberg v. Raymond, 370 Mass. 105, 108
(1976). The privilege also "applies to an attorney's actions
during the course of a judicial proceeding, just as it does to
the attorney's communications." Bassichis v. Flores, 490 Mass.
143, 158 (2022). If the privilege attaches, its protections are
absolute. See Correllas v. Viveiros, 410 Mass. 314, 320 (1991).
At its core, the litigation privilege is intended to
protect participants in judicial proceedings from actions for
defamation based on communications made "preliminary to a
proposed judicial proceeding, or in the institution of, or
during the course and as a part of a judicial proceeding."
Sriberg, 370 Mass. at 108-109. See Correllas, 410 Mass. at 319-
320, 323 (privilege applies to defamatory statements made when
"police and prosecutors were contemplating a criminal action");
Aborn v. Lipson, 357 Mass. 71, 72-73 (1970) (privilege applies
to defamatory statements having "some reasonable relation or
reference" to proceeding); Giuffrida v. High Country Investor,
Inc., 73 Mass. App. Ct. 225, 242-243 (2008) (privilege applies
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-389
YURIY MARGULIS
vs.
DANIEL Z. RIVLIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment
dismissing his complaint following a motion judge's order
allowing the defendant's motion to dismiss on the grounds that
the plaintiff's allegations in the complaint are all protected
by the litigation privilege. The defendant is an attorney who
represented the ex-husband of the plaintiff's daughter during
New York divorce proceedings. We agree with the judge that the
communications and actions by the defendant referenced in the
complaint were made "during the course of" the New York divorce
proceedings, and that those communications and actions are
protected by the litigation privilege. We affirm. Background. In March 2015, divorce proceedings commenced
in New York between the plaintiff's daughter and her former
husband, David Bitton (Bitton). Bitton retained the defendant,
a New York licensed attorney, to represent him in the divorce
action. As part of that divorce action, the Supreme Court of
New York issued automatic court orders on March 23, 2015, which
provided in relevant part:
"Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties . . . ."
The automatic court orders were to remain in effect until the
divorce was finalized, which occurred on June 4, 2019.
Meanwhile, on May 16, 2019, the Boston law firm of Butters
Brazilian LLP (Butters), who represented Bitton in several
lawsuits against the plaintiff, recorded two mortgages on
Bitton's property in Newton. One was in the amount of $350,000,
securing attorney's fees owed to Butters, and another was in the
amount of $100,000, securing attorney's fees owed to the
defendant for services in representing Bitton in the New York
divorce.
Jade Real Estate Investments, LLC (Jade), owned by the
plaintiff, had obtained a real estate attachment against
Bitton's Newton property. In August 2020, the Superior Court
2 granted Jade an attachment increase on its previously held
$350,000 attachment to $476,951.12. 1 The court determined that
the second attachment "shall have a nunc pro tunc effective
date." In March 2022, in a separate action, the Superior Court
allowed the plaintiff's motion for an attachment on Bitton's
Newton property in the amount of $571,213.33. This attachment
was behind in priority to Jade's attachments and Butters's
mortgages.
On January 20, 2023, the plaintiff filed the present action
in Superior Court against the defendant for conspiracy,
negligent and reckless misrepresentation, fraud, and emotional
distress in connection with the defendant's actions, along with
Butters's, in obtaining mortgages on property owned by Bitton,
ahead in priority to "defraud" the plaintiff. In response, the
defendant brought a motion to dismiss alleging that the
plaintiff's claims were barred by the litigation privilege,
collateral estoppel, failure to name an indispensable party,
prematurity of claim, lack of personal jurisdiction, and failure
to state a plausible claim for relief. The Superior Court judge
allowed the defendant's motion on the grounds of the litigation
privilege but denied it on all other grounds. It is from this
dismissal that the plaintiff appeals.
1 Jade obtained the $350,000 attachment on Bitton's Newton property in November 2016.
3 Discussion. "We review the allowance of a motion to
dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). In conducting our review, we accept as true
all the facts alleged in the complaint and draw all reasonable
inferences in the plaintiff's favor. See Flagg v. AliMed, Inc.,
466 Mass. 23, 26 (2013), citing Marram v. Kobrick Offshore Fund,
Ltd., 442 Mass. 43, 45 (2004).
The crux of the complaint here pertains to actions by the
defendant relating to the New York divorce proceeding.
Specifically, the plaintiff alleged that the defendant made
numerous misrepresentations to the New York Supreme Court,
including that the defendant incorrectly testified to the number
of outstanding obligations on Bitton's property. 2 In the
complaint, the plaintiff further alleged that the defendant
conspired with Butters to "defraud" the plaintiff, including by
filing for attachments on Bitton's property in violation of the
automatic court orders issued by the New York Supreme Court.
The plaintiff's claims of infliction of emotional distress stem
from the defendant's actions in his alleged misrepresentations
and fraud in New York. Simply put, the complaint's allegations
relate to the New York divorce proceedings.
2 As another example, the plaintiff alleged that the defendant fabricated charges for communications with the plaintiff's attorney that did not occur.
4 The litigation privilege protects "statements by a party,
counsel or witness in the institution of, or during the course
of, a judicial proceeding . . . provided such statements relate
to that proceeding." Sriberg v. Raymond, 370 Mass. 105, 108
(1976). The privilege also "applies to an attorney's actions
during the course of a judicial proceeding, just as it does to
the attorney's communications." Bassichis v. Flores, 490 Mass.
143, 158 (2022). If the privilege attaches, its protections are
absolute. See Correllas v. Viveiros, 410 Mass. 314, 320 (1991).
At its core, the litigation privilege is intended to
protect participants in judicial proceedings from actions for
defamation based on communications made "preliminary to a
proposed judicial proceeding, or in the institution of, or
during the course and as a part of a judicial proceeding."
Sriberg, 370 Mass. at 108-109. See Correllas, 410 Mass. at 319-
320, 323 (privilege applies to defamatory statements made when
"police and prosecutors were contemplating a criminal action");
Aborn v. Lipson, 357 Mass. 71, 72-73 (1970) (privilege applies
to defamatory statements having "some reasonable relation or
reference" to proceeding); Giuffrida v. High Country Investor,
Inc., 73 Mass. App. Ct. 225, 242-243 (2008) (privilege applies
to defamatory statements when "legal action was contemplated
when the allegedly defamatory statements were made").
5 "The privilege applies not only to defamation claims
brought against the attorney, but to civil liability generally."
Bartle v. Berry, 80 Mass. App. Ct. 372, 378 (2011). See
Correllas, 410 Mass. at 324 (privilege protects against claims
for intentional inflection of emotional distress); Doe v.
Nutter, McClennen & Fish, 41 Mass. App. Ct. 137, 137, 140-141
(1996) (privilege protects against invasion of privacy and
violations of Civil Rights Act and G. L. c. 93A); Sullivan v.
Birmingham, 11 Mass. App. Ct. 359, 360, 366-368 (1981)
(privilege protects against abuse of process, libel, and
negligence).
Where, as here, the communications referenced in the
complaint were made "during the course of" the New York divorce
proceedings, those communications are protected by the
litigation privilege. Sriberg, 370 Mass. at 108. Similarly,
the defendant's actions and conduct contested in the complaint
took place during the course of the New York divorce proceeding
in which the defendant was serving his client. See Bassichis,
490 Mass. at 158. Since the plaintiff's complaint only alleged
statements and actions made by the defendant while representing
Bitton and in furtherance of Bitton's interests, the litigation
6 privilege applies and the motion to dismiss was properly
allowed.
Judgment affirmed.
By the Court (Vuono, Brennan & D'Angelo, JJ. 3),
Clerk
Entered: March 26, 2025.
3 The panelists are listed in order of seniority.