State-Wide Insurance v. Glavin

Order, entered June 27, 1961, granting plaintiff’s motion to strike the second affirmative defense in defendant’s answer which pleaded the defense of privilege in an action for libel, unanimously affirmed, with $20 costs and disbursements to respondent. Defendant contends that the letter, which forms the basis for plaintiff’s action for defamation, was written by defendant in the course of a judicial proceeding, and since it was relevant thereto, it was absolutely privileged. The absolute privilege as to statements or utterances in the course of judicial proceedings applies to letters written by attorneys in connection with an action. (Simon v. Stim, 11 Misc 2d 653, affd. 10 A D 2d 647; Zirn v. Cullom, 187 Misc. 241.) In Zirn v. Cullom, the letter was considered as an offer of settlement; and in Simon v. Stim, the letter was written to a Justice of the Supreme Court in connection with the settlement of an order. Thus, where the letter is written in the course of judicial proceedings and is directly pertinent and relevant to the proceedings, it is privileged. The letter in the instant ease does not meet this test. The negligence action was commenced to protect the interests of defendant’s client or to further them. But, the alleged reasons given by defendant in his letter for commencing an action had no relevancy to the issues of the negligence action, nor did they relate to any proceedings in the course thereof. Special Term was correct in refusing to extend the right of absolute privilege to the communication involved herein. Concur — Breitel, J. P., Valente, McNally, Stevens and Steuer, JJ.