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February 27, 2014

The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation


The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation
2013 NY Slip Op 52290(U), Court of Claims [Not selected for publication in the Official Reports]

An individual [Petitioner] who worked at a state correctional facility filed a claim “sounding in defamation per se” alleging that an article appeared in the print and the on-line versions of a newspaper included statements attributed to a State official that disparaged Petitioner.

Eventually it was determined that alleged defamatory statements were made by a state employee and had been “acquired by a non-State actor,” which person gave it to one of the newspaper’s reporters.

According to the decision, an Assistant Attorney General involved in the instant matter provided a copy of the employee’s memorandum to an attorney, apparently the alleged “non-State actor,” involved in a related matter then pending in federal court.

The Court of Claims “assumed without deciding” that Petitioner’s proposed amended claim satisfied the threshold jurisdictional requirements of being timely filing and served within the relevant statute of limitations and that it satisfies the substantive pleading requirements of Court of Claims Act §11(b).

The court then denied Petitioner’s motion to amend his claim explaining that the alleged tortious conduct — the Assistant Attorney General’s “publication (or republication) of the [State employee’s] memorandum to [the attorney in the federal action] is not actionable because it was absolutely privileged,”* as “Statements made in the course of judicial proceedings are absolutely privileged … and absolute privilege will attach if the allegedly defamatory statements were ‘pertinent’ to the questions involved in the judicial proceeding.”

Further, explained the court, "Whether a statement is at all pertinent . . . is determined by an extremely liberal test" and  "To be actionable, a statement . . . must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame."

As the Court of Appeals held in Youmans v Smith, 153 NY 214, “The purpose of the absolute privilege afforded to communications made in the course of judicial proceedings is well established and clearly stated: the due process of ‘clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander.’"

Accordingly, said the court, the Assistant Attorney General’s actions in turning over the allegedly defamatory memorandum in the context of ongoing litigation are entitled to the absolute privileged, provided that the alleged defamatory statements were pertinent to the litigation, which, in this instance, the court found were so pertinent.


* The Court of Claims noted that "Absolute privilege has been recognized in a very few situations where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives.” However, in Amato v. Welsh, 2013 ONCA 258, a decision handed down by Canada’s Court of Appeals for Ontario, suggests an exception to the doctrine. The Amato decision suggests that it may be possible for a court to find that the doctrine of absolute immunity yields to the attorney’s duty of loyalty to a client [see paragraphs 61 et seq. set out in the decision].

The decision is posted on the Internet at:

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