An excerpt from Arnstein v. Stein Saks, PLLC, decided last week by New York County trial court judge Judy Kim (currently being appealed) (you can also read plaintiff's Complaint and legal argument opposing the motion to dismiss):
Plaintiff alleges that defendants defamed him in their motion to dismiss an action filed against them …, Mark Goldberg v. Mark Rozenberg Esq. et al… (the "Bronx Action"). The plaintiff in the Bronx Action, Mark Goldberg, sued defendants for defamation based on statements made in yet another lawsuit, … entitled The Natural Sapphire Company v Marz Rozenberg et al.
Plaintiff contends that, as part of defendants' motion to dismiss the Bronx Action, they "gratuitously referred to [p]laintiff by name and included salacious statements regarding his past conviction—accusing him of forgery and labeling him a 'convicted felon'—without any connection to the issues or parties in that case." Plaintiff asserts claims for defamation and abuse of process ….
"[A] statement made in the course of legal proceedings is absolutely privileged if it is at all pertinent to the litigation." … Here, defendants' statements about plaintiff in the Bronx Action were pertinent to the motion to dismiss that action. While plaintiff was not a party in the Bronx Action, defendant asserted that he was the principal of the Natural Sapphire Company and, in that capacity, employed Goldberg, and was part of a coordinated campaign of meritless actions filed against defendants after defendants filed in Federal Court against The Natural Sapphire Company asserting violations of the Americans with Disabilities Act. This information is pertinent to, inter alia, defendants' request for sanctions in the Bronx Action. Accordingly, they fall within the absolute litigation privilege, precluding the defamation claims asserted here.
Even setting this aside, plaintiff does not dispute the truthfulness of defendants' statements about his criminal conviction. As such, no defamation claim based on this statement lies…. "[T]ruth is an absolute defense to a defamation action" ….
Neither has plaintiff stated an abuse of process claim. [Details omitted. -EV] Finally, defendants' request for sanctions is granted to the extent that plaintiff is enjoined from commencing any new litigation in the New York State courts against any defendant herein without obtaining prior approval from the court. The record reflects that such relief is necessary "to prevent use of the judicial system as a vehicle for harassment, ill will and spite."
