rule of absolute privilege in New York

1975The only case in point on the question of privilege as it relates to a report of the State Department of Audit and Control is that of Peeples v State of New York ( 179 Misc 272 ) wherein Judge Barrett, writing for a two-Judge court, stated (p 276): "The rule of absolute privilege was designed particularly and peculiarly for the protection of those public officers acting in a judicial, legislative, or executive capacity and was not intended as a shield for the unguarded, reckless, or malicious statements of all who perform governmental functions.

1960There was no moral or legal duty to advise a newspaper reporter regarding the claimant’s alleged reprehensible conduct of its business “ because the audience could do nothing about it in any event ” (Cheatum v. Wehle, 5 A D 2d 448, 451). “ The rule of absolute privilege was designed particularly and peculiarly for the protection of those public officers acting in a judicial, legislative, or executive capacity and was not intended as a shield for the unguarded, reckless, or malicious statements of all who perform governmental functions.” (Peeples v. State of New York, 179 Misc. 272, 276 , supra

1951It also appears that the tendency of our courts is to restrict the rule of absolute privilege rather than to extend it (Andrews v. Gardiner, 224 N. Y. 440 ).

1922It is not applied “ to proceedings which, though official and public, are not in substance judicial,” and it is “ the tendency of courts to restrict the scope of absolute privilege in libel.” (Andrews v. Gardiner, supra.) In our opinion it should not be held that the rule of absolute privilege is applicable to the circumstances before us.

1980(See Klein v McGauley, 29 AD2d 418, 420 .) Thus, the critical issue is whether the March 24, 1980 letter which was sent by the attorney for the wife, a potential litigant in the later commenced matrimonial action, may be construed to be within the cloak of the immunity provided by the rule of absolute privilege.

1958(See Zirn v. Collum, 187 Misc. 241 .) It is the opinion of the court, however, that the rule of absolute privilege was never meant to apply to unsolicited communications made by persons not directly involved in the litigation, officiously made and not acceptable as evidence.

1931Lewisohn v. O’Brien ( 176 N. Y. 253, 264 ): “ The language of Chief Justice Marshall in the Circuit Court of the United States for the District of Virginia (June, 1807), in Burr’s Trial ( 1 Burr’s Trial, 244 ), on the question whether the witness was privileged not to accuse himself, is as follows: ‘ If the question be of such a description that an answer to it may or may not criminate the witness according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not-.’ ” This rule of absolute privilege obviously has no applicatio

1928In Pecue v. West ( 233 N. Y. 316 ), the Court of Appeals, after stating that some courts in libel actions, believing that the general interest requires the utmost freedom in such matters, have enforced a rule of absolute privilege upon a complaint made or information given to a district attorney of an alleged crime, and, after citing the cases of Matter of Quarles & Butler ( 158 U. S. 532 ) and Vogel v. Gruaz (110 id. 311), among others, as supporting that rule, refused to follow those decisions, and held that the rule of absolute privilege does not attach to a complaint made or information gi

1928Such a communication is subject, however, to the rule of qualified privilege, and that, in order to justify a recovery in an action for libel based upon it, the plaintiff must establish that it was made maliciously and without probable cause; the court in its opinion ( 233 N. Y. 316 ) stating (at p. 321): “ We have said impliedly that the rule [of absolute privilege] applies only to a proceeding in court or one before an officer having attributes similar to a court.

1928In Pecue v. West ( 233 N. Y. 316 ), the Court of Appeals, after stating that some courts in libel actions, believing that the general interest requires the utmost freedom in such matters, have enforced a rule of absolute privilege upon a complaint made or information given to a district attorney of an alleged crime, and, after citing the cases of Matter of Quarles & Butler ( 158 U. S. 532 ) and Vogel v. Gruaz (110 id. 311), among others, as supporting that rule, refused to follow those decisions, and held that the rule of absolute privilege does not attach to a complaint made or information gi