| Solomon v Larivey |
| 2008 NY Slip Op 02360 [49 AD3d 1274] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| James Solomon, Appellant, v John Larivey et al., Respondents.(Appeal No. 1.). |
—[*1] Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), fordefendant-respondent John Larivey. Law Offices of Laurie G. Ogden, Buffalo (John J. Quackenbush, Jr., of counsel), fordefendant-respondent Jennifer Propis.
Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), enteredJanuary 5, 2007. The order, insofar as appealed from, granted the motion of defendant JohnLarivey for summary judgment dismissing the complaint against him and that part of the motionof defendant Jennifer Propis for summary judgment dismissing the complaint against her.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: James Solomon, the plaintiff in appeal No. 1 and a defendant in appeal No. 2,pleaded guilty to sexual misconduct (Penal Law § 130.20 [2]), arising out of an incidentinvolving the 15-year-old daughter of the plaintiff in appeal No. 2 (plaintiff). Solomon asserted a"first counterclaim" against plaintiff and her daughter in which he alleged that they each wrote adefamatory letter to Town Court in an effort to influence his sentence. Solomon also commencedan action alleging that the defendants in appeal No. 1, the stepfather of plaintiff's daughter andone of plaintiff's friends, also wrote defamatory letters to Town Court in an effort to influencedefendant's sentence. In appeal No. 1, Solomon appeals from an order granting the motion of thestepfather seeking summary judgment dismissing the complaint against him and that part of themotion of plaintiff's friend seeking summary judgment dismissing the complaint against her and,in appeal No. 2, Solomon appeals from an order granting plaintiff's motion seeking summaryjudgment dismissing "the counterclaim."
With respect to Solomon's complaint and counterclaim, we note the well-establishedprinciple that oral or written statements made in the course of a judicial proceeding "areabsolutely privileged, notwithstanding the motive with which they are made, so long as they arematerial and pertinent" to the litigation (Sinrod v Stone, 20 AD3d 560, 561 [2005]; see Sexter & [*2]Warmflash, P.C. v Margrabe, 38 AD3d 163, 171 [2007];Mosesson v Jacob D. Fuchsberg Law Firm, 257 AD2d 381, 382 [1999], lv denied93 NY2d 808 [1999]).In determining whether an allegedly defamatory statement is pertinent and material to ajudicial proceeding, the court must accord the statement an " 'extremely liberal' " construction (Dworkin v State of New York, 34AD3d 1014, 1015 [2006]; see generally Andrews v Gardiner, 224 NY 440, 445[1918]). Here, the statements by plaintiff, plaintiff's daughter, the stepfather, and plaintiff's friendwith respect to the impact that the incident had on plaintiff's daughter unquestionably werepertinent and material to the criminal proceeding. Present—Scudder, P.J., Martoche,Smith, Green and Gorski, JJ.