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MEYERS v. AMERADA HESS CORP.

November 1, 1986

HOWARD B. MEYERS, Plaintiff
v.
AMERADA HESS CORPORATION, Defendant



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

This action was commenced by Howard B. Meyers against his former employer Amerada Hess Corporation. The complaint alleges two causes of action: (1) Age discrimination under 29 U.S.C. section 623 et seq.; and (2) defamation for alleged defamatory statements made during an investigative conference held by the New York State Division of Human Rights ("Division"). The defendant moves for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, dismissing the defamation claim which alleges that a false and defamatory statement referring to plaintiff as "a case of burn-out" was made before the New York State Division of Human Rights, and that it was foreseeable that this statement would spread through "the grapevine" and would thereby be repeated to others outside the meeting. *fn1"

I. Absolute Immunity

 A threshold issue raised by this motion is whether the statement of "burn-out" alleged to have been made by defendant's counsel during the State Division of Human Rights investigatory conference ("conference") is protected by the absolute immunity which attaches to statements made in the course of a judicial proceeding. *fn2" The New York Court of Appeals has held that statements made in the course of judicial proceedings are absolutely privileged as long as they are material and pertinent to the questions involved in the proceedings. *fn3" If they meet the criteria, then motive is irrelevant. *fn4" This privilege extends to other official proceedings which can be considered quasi-judicial in nature, including administrative proceedings. *fn5" Therefore, the resolution of this issue depends on whether the conference can be considered quasi-judicial, and, if so, whether the alleged defamatory statement made in the course of the conference was "material and pertinent to the questions involved."

 In Silver v. Mohasco Corporation,6 the court dismissed three defamation actions stating that,

 These actions sounding in libel and slander are based upon statements allegedly published by defendants before the State Division of Human Rights, and since the subject proceeding before the State Division of Human Rights was plainly quasi-judicial in nature, and the statements were pertinent to the charges of discrimination being considered therein, the statements were clearly privileged.

 The New York Court of Appeals affirmed this holding with the statement that the libel and slander causes of action sold be dismissed because they were based, ". . . on privileged statements made to the State Division of Human Rights." *fn7" While the Silver cases do not indicate at what stage in the State Division of Human Right's proceedings that alleged defamatory statements were made, given the facts of this case, this ambiguity is not significant.

 In the frequently cited case of Toker v. Pollak the Court stated that:

 . . . the communication of a complaint to a District Attorney does not constitute or institute a judicial proceeding. Hence, no one would dispute that at this point a District Attorney receiving such information does not act as a judicial or quasi-judicial officer. At this juncture his function is more analogous to that of the police officer than that of the Judge. *fn8"

 What this case illustrates is that to be covered by the absolute immunity, the defamatory statements must have been made "in office;" *fn9" in other words, they must have been made in the course of a "judicial proceeding," not prior to the commencement of it. *fn10"

 However, there is no doubt that the investigatory conference is part and parcel of the Division's quasi-judicial proceedings. The investigatory conference involved a hearing in which the examiner was acting as an arm of the Division, in the investigation of a filed complaint, as part of the adjudicatory process by which the commissioner determines whether the complaint is lacking in probable cause, and therefore should be dismissed, or whether the merits of the case warrant further adjudicatory action; as such, the conference must be considered to be in the course of a quasi-judicial proceeding. This is supported by the fact that the absolute privilege attaches to "every step" of a quasi-judicial proceeding. *fn11" That the "step" takes place before an actual hearing is held does not exclude it from the privilege as long as it can be said to have been in the "course" of the proceedings, which includes preparation for those proceedings. *fn12" It does not matter that a hearing before an Administrative Law Judge might never occur if the complaint is dismissed for lack of probable cause, after the Division has completed its investigation of the matter and considered the evidence, any more than it matters that an allegedly defamatory complaint filed in a judicial action, which is clearly privileged under New York law, might be dismissed on the pleadings without a hearing. *fn13"

 This investigatory conference was clearly a part of the quasi-judicial proceeding before the Division, which the New York Court of Appeals has already determined warrants application of the privilege attaching to judicial proceedings. Despite the lack of a court reported, the fact that no evidence was taken, and that no rulings were made at the conference, the investigator was acting as an arm of the quasi-judicial body in the course of its decision as to whether or not there was sufficient probable cause to hold a hearing on the complaint. In contrast to the situation discussed in Toker, where the communication to the District Attorney was not part of a judicial body's consideration of the matter, the District Attorney was not acting on behalf of a judicial officer, and no complaint initiating the judicial proceedings had been filed, this conference was a step in the proceedings by which the State Division of Human Rights adjudicates the merits of a complaint filed with it. The absolute privilege against liability for alleged defamatory statement applies to statements made during the conference.

 B. Relevance of Statements

 The next issue to be resolved, is whether as, a matter of law, the statements made during the conference were material and pertinent to the ...


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