While locked in a dispute with a business partner, a man’s inference that his partner stole money was shielded from a defamation claim, a Brooklyn appellate court said.
A unanimous panel of the Appellate Division, Second Department, overruled a lower court, finding that businessman James Weil’s challenged statements were absolutely privileged “because they were pertinent to the ongoing judicial proceeding and were allegedly made to parties, counsel, or possible witnesses.”
Weil and Sammy El Jamal were business partners in connection with gas station franchises, but the relationship went bad, according to one of Weil’s attorneys, Mark Oxman, of Oxman Tulis Kirkpatrick Whyatt & Geiger in White Plains.
There are number of actions pending in both Westchester County Supreme Court and the Southern District of New York, and the litigation is “extremely acrimonious,” Oxman said.
El Jamal’s defamation suit against Weil arose from various 2011 email exchanges and other statements. In July 2011, Weil wrote an email to three of El Jamal’s employees and Weil’s attorneys after a new development in the litigation, calling El Jamal “someone who is a liar and not in touch with reality.”
One part of the business dispute involved money that El Jamal’s solely-owned business allegedly owed to a business owned by El Jamal, Weil and another man.
Weil and the other man emailed El Jamal about their attempts to recover the money. On Aug. 25, 2011, El Jamal responded “I’m glad that you are admitting that the money isn’t stolen.”
With attorneys for El Jamal and Weil included on the email, Weil wrote back the same day, “Leon and I are in no way saying the money was not stolen[;] we know it was.”
El Jamal sued Weil for libel per se over the July and August 2011 emails.
El Jamal also sued Weil for slander per se in connection to statements Weil made over several months to various individuals.
Westchester County Supreme Court Justice Sam Walker denied Weil’s dismissal bid in September 2012 despite Weil’s assertions of absolute privilege.
As far as the July 2011 email, the judge said that given the case’s circumstances “and when the email communication is viewed in the light most favorable to plaintiff, there is only tangentially related nexus to the related litigation.”
Likewise, Walker said Weil’s statement in the August 2011 email was “not material or pertinent to the litigation and furthermore, if there was some privilege attached to the communication that privilege is lost if abused and published with malice.”
In reversing Walker, the Second Department observed “statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court are accorded an absolute privilege, so long as the statements may be considered in some way ‘pertinent.’”
That immunity extended to statements in and out of court “and regardless of the motive with which they were made,” the panel said.
The court noted that in addition to the immunity afforded to Weil’s challenged emails, El Jamal’s third claim of slander per se also failed because the challenged statements “were either privileged, not actionable, not defamatory per se, or were not pleaded with sufficient particularity.”
In an interview, Oxman called the panel’s ruling “reasoned and fair and just,” saying the defamation action should not have been brought in the first place and “was something initiated for the sole purpose of exacting a certain amount of revenge.”
Weil was also represented by Lois Rosen of Oxman Tulis and Daniel Kornstein and Ina Bort of Kornstein Veisz Wexler & Pollard in Manhattan.
Bruno Gioffre, Jr. of Harrison appeared for El Jamal on the brief, but declined to comment, noting he was no longer the counsel of record.