New York State Court of Claims

New York State Court of Claims
DWORKIN v. THE STATE OF NEW YORK, #2005-032-029, Claim No. 109746, Motion No. M-69169

Affirmed 34 AD 3d 1014 [3d Dept 11/16/06]
Case Information
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Carl G. Dworkin, Esq., Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
March 30, 2005

Official citation:

Appellate results:
Affirmed 34 AD 3d 1014 [3d Dept 11/16/06]
See also (multicaptioned case)


Defendant moves this Court for an order pursuant to CPLR 3211 dismissing claimant's
defamation action for failure to state a cause of action.

This claim arises as a result of certain statements made by defendant's counsel in an underlying slip and fall claim, Sangiacomo v State of New York, pending in this Court where claimant represents Sangiacomo. During discovery in Sangiacomo, claimant sought information regarding prior complaints/falls at the State office building where Sangiacomo fell. Claimant determined that defendant's response was inadequate and thereafter claimant moved, inter alia, to compel production of certain materials in response to his discovery demands. In his motion to compel, claimant accused defense counsel of misconduct and deliberately thwarting claimant. Defense counsel's opposition papers stated that claimant's comments were "exaggerated and baseless" and the general tone of claimant's papers suggested a "level of instability and paranoia" [Verified Claim ¶ 8]. As a result of these comments, claimant commenced this action alleging defamation. Defendant now moves to dismiss the claim, alleging that the statements relate to litigation and, thus, are absolutely privileged. In opposing this relief, claimant acknowledges his moving papers in the Sangiacomo litigation, but contends that defense counsel's statements are framed as facts relative to claimant's mental faculties and do not relate to the Sangiacomo litigation.
It is well-settled that "in the context of a legal proceeding, statements by parties and their attorneys are absolutely privileged if, by any view or under any circumstances, they are pertinent to the litigation" (Grasso v Mathew, 164 AD2d 476, 479 [3d Dept 1991]; see Martirano v Frost, 25 NY2d 505, 507 [1969]). "No action for defamation exists unless the statement is so obviously impertinent as not to admit discussion of pertinence, and so needlessly defamatory as to warrant the inference of express malice and a motivation solely to defame" (id).
Here, defense counsel's statements were contained in his opposition to claimant's motion in Sangiacomo and, thus, were made in the context of legal proceedings. Further, given the tenor of claimant's remarks in his moving papers on that claim, the Court determines that defense counsel's responsive remarks were pertinent to the litigation and not needlessly defamatory. As such, claimant's allegations are legally insufficient and must be dismissed (see, e.g. Impallomeni v Meiselman, Farber, Packman & Eberz, P.C., 272 AD2d 579, 580 [2d Dept 2000]); Kenny v Cleary 47 AD2d 531, 532 [1975]).
Accordingly, defendant's motion to dismiss is granted.

March 30, 2005
Albany, New York

Judge of the Court of Claims

The following papers were considered on defendant's motion:

1. Notice of Motion to Dismiss;
2. Affidavit of Michael C. Rizzo sworn to September 27, 2004; Exhibits 1-6 annexed;
3. Affidavit of Kevan J. Acton sworn to September 27, 2004;
4. Affirmation of Carl G. Dworkin dated October 26, 2004;
5. Reply Affidavit of Michael C. Rizzo sworn to November 1, 2004; Exhibit 1 annexed;
6. Affidavit of Carl G. Dworkin sworn to November 5, 2004;
File papers: Verified Claim

[1]The court cautions both counsel, however, that it will not tolerate inappropriate behavior and counsel are both advised to refrain from such conduct in the future.