Court in Sexual Harassment Case Holds That Providing Information to Press Was Not “Absolutely Privileged”; Denies Motion to Dismiss Defamation Counterclaim

In Volpe v. Paniccioli, 2017 NY Slip Op 51554(U) (N.Y. Sup. Ct. Sup. Cty. Nov. 15, 2017), a case involving allegations of (inter alia) sexual harassment, the court denied the plaintiff’s motion to dismiss defendant’s counterclaims for, e.g., defamation.

By her motion, plaintiff “contends that the statements she has made are absolutely privileged as they were made in the context of judicial proceedings” and that “under common law as well as Section 74 of the New York Civil Rights Law, she has the right to distribute her complaint to the press.”

The court disagreed, holding:

[T]o set forth a viable cause of action for defamation, defendants’ first counterclaim “must allege that [plaintiff] published a false statement, without privilege or authorization, to a third party . . .” (Rodriguez v Daily News, L.P., 142 AD3d 1062, 1063 [2nd Dept 2016]). Contrary to plaintiff’s contention, defendant has satisfied this threshold burden with respect to the common law. They have stated that plaintiff set forth false claims in her complaint which she shared with the press, that she was available for interview regarding the claims, and that she directed her husband to release a defamatory email on her behalf. Further, they have stated that the claims of sexual abuse and sexual fetishes are likely to “expose [him] to public contempt” and harm him in his position as a pharmacist (Greenberg v Spitzer, — AD3d —, —, 2017 Slip Op 06432 [2nd Dept 2017]).

In arguing for dismissal of this counterclaim, plaintiff alleges that the release of court documents to the press, and her comments to the New York Post article, are absolutely privileged. One of the princip[al] cases on which she relies, however, distinguishes between in-court statements, which enjoy “considerable broader” protection “than that for out-of-court reports relating to the proceeding” (D’Annunzio v Ayken, Inc., 876 F. Supp. 2d 211, 217 [EDNY 2012]). The court in D’Annunzio went on to state that “out-of-court statements, such as those made in a press conference or press release, are not covered by the absolute privilege” (Id.) The court therefore concluded that “the delivery of a copy or report of a complaint to the press is not a statement made during the course of judicial proceedings and therefore is not protected by the common law privilege” (Id.). Thus, the principle on which plaintiff relies is not applicable to defendants’ claim.

Moreover, defendants have set forth a viable cause of action under Civil Rights Law § 74, which precludes claims asserted “against any person . . . for the publication of a fair and true report of any judicial proceeding . . . .” Under a long line of precedent starting with Williams v Williams (23 NY2d 592, 596-99 [1969]), courts have found that “it was never the intention of the Legislature in enacting section 74 to allow ‘any person’ to maliciously institute a judicial proceeding alleging false and defamatory charges, and then circulate a press release or other communication based thereon and escape liability by invoking the statute

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