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Brooklyn Appellate Court finds non-defamation for statements made in litigation

The Appellate Division, 2nd Department. Wikipedia photo by Beyond My Ken

Brooklyn Daily Eagle

The Appellate Division, 2nd Department ruled that comments made about one’s business partner during a contentious litigation cannot be deemed defamatory statements for the purpose of a civil suit.

Sam El Jamal and James Weil were business partners connected to a number of gas station franchises. A dispute involving money arose between them, which spawned litigation among the parties. As the suit proceeded, a series of email exchanges, initiated by Weil, painted El Jamal in a negative light.

According to court documents, Weil sent an email in July 2011 to employees of El Jamal describing his former business partner as “someone who is a liar and not in touch with reality." A month later, he sent a separate email to a business partner of El Jamal, Leon Silverman, intimating that El Jamal stole money. “Leon and I are in no way saying the money was not stolen…we know it was," the email read. Weil’s attorneys were carbon copied on each of these emails.

Believing that these caused him economic harm, El Jamal filed a defamation suit against Weil.

For a defamation suit to be successful, the plaintiff must show that the alleged statements were not covered by some form of privilege and therefore not actionable. 

Generally, communications—in or out of court—made by parties to each other, their attorneys, or potential witnesses during the litigation process are “accorded an absolute privilege, so long as the statements may be considered in some way ‘pertinent’ to the issue in the proceeding,” the appellate court noted.

A lower trial court reviewing the email exchanges found that Weil’s comments were not privileged as they were "not material or pertinent to the litigation.” Furthermore, the lower court ruled, “if there was some privilege attached to the communication that privilege is lost if abused and published with malice." 

Weil appealed to the Appellate Division, 2nd Department and the four-paneled court reversed the lower court decision, ultimately finding Weil’s statements privileged, thus dismissing El Jamal’s defamation suit. 

Immunity, or privilege, is given “regardless of the motive with which they are made,” the unanimous panel ruled. Weil’s emails, as malicious as their intent may have been, were “absolutely privileged as a matter of law, because they were pertinent to the ongoing judicial proceeding and were allegedly made to parties, counsel, or possible witnesses.”

Brooklyn Appellate Division Justices William Mastro, Ruth Balkin, Robert Miller and Hector LaSalle sat on the deciding panel.

Mark S. Oxman of Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP represented Weil. Bruno V. Gioffre, Jr. appeared for El Jamal.

April 18, 2014 - 2:00pm


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