                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: June 18, 2015                       519549
________________________________

JOHN C. McPHILLIPS,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   April 21, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

                               __________


      Oliver Law Office, Albany (Lewis B. Oliver Jr. of counsel),
for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for respondent.

                               __________


Garry, J.

      Appeal from an order of the Court of Claims (DeBow, J.),
entered January 22, 2014, which, among other things, denied
claimant's motion to amend the claim.

      In August 2009, claimant, a physician working for the
Department of Corrections and Community Supervision, treated an
inmate who, while under claimant's care and in the Department's
custody, died of heatstroke in the course of a run required as a
part of his participation in the shock incarceration program. An
investigation into the cause of the inmate's death was commenced
by the Commission of Correction Medical Review Board. The
reported findings included a recommendation that administrative
action be taken against claimant for his refusal to provide a
refill of Albuterol Metered Dose Inhaler to the inmate, who had a
                               -2-                519549

history of asthma.

      In August 2010, the inmate's estate commenced an action
against various state actors alleging, among other things,
medical malpractice (hereinafter referred to as the malpractice
litigation). In November 2010, claimant, not yet a named
defendant in the malpractice litigation, sent a letter to an
Assistant Attorney General (hereinafter the AAG) acting as
counsel for the defendants in the malpractice litigation, denying
his responsibility for the inmate's death and explaining his
response to the Medical Review Board's report. Claimant also
provided a copy of this letter to the Commission of Correction
and others. A memorandum responding to the contentions in
claimant's correspondence was then prepared by an individual
apparently employed within the Commission of Correction, and was
sent to the Commissioner of the Medical Review Board (hereinafter
the Commissioner). This memorandum controverted claimant's
assertion that the inmate hid inhaler overuse in markedly strong
language, stating that this was "pure nonsense and demonstrates
biases against the incarcerated," and, further, that claimant's
allegation "that [the inmate] was abusing Albuterol as an illicit
drug substitute is completely crazy and to my knowledge there are
no drug treatment programs for Albuterol use."

      At some point after the malpractice litigation had
commenced, the AAG sent this memorandum to opposing counsel in
that action, who, in turn, forwarded it to the Daily News. The
Daily News then ran a story mentioning claimant by name and
disclosing the contents of the memorandum. After reading the
Daily News article, but not knowing who had made the underlying
statements, claimant initially filed a notice of claim against
defendant. Thereafter, claimant filed this notice of claim
against defendant and the Commissioner, alleging that the
Commissioner had disclosed information about the treatment that
claimant had provided to the inmate to the Daily News reporter.1
Upon subsequently discovering that the source of the published
statements was in fact not the Commissioner, claimant then moved


     1
        The claim against the Commissioner was ultimately
dismissed.
                              -3-                519549

to amend his claim to reflect the theory that the memorandum
contained statements that amounted to libel per se, and that the
AAG's disclosure of it to opposing counsel in the malpractice
litigation was a libelous act, under a republication theory. The
Court of Claims denied claimant's motion on the ground that the
proposed amendment is nonmeritorious, as barred by the absolute
immunity accorded counsel in judicial proceedings. Claimant
appeals.

      We affirm. Statements made by parties and their counsel in
the context of a legal action or proceeding are protected by an
absolute privilege so long as, "by any view or under any
circumstances, they are pertinent to the litigation" (Grasso v
Mathew, 164 AD2d 476, 479 [1991], lv dismissed 77 NY2d 940
[1991], lv denied 78 NY2d 855 [1991]; see Adamski v
Romano-Schulman, 56 AD3d 1078, 1079 [2008]). Allowing such
statements or writings to form the basis of an action for
defamation "would be an impediment to justice, because it would
hamper the search for truth and prevent making inquiries with
that freedom and boldness which the welfare of society requires"
(Youmans v Smith, 153 NY 214, 220 [1897]; see Allan & Allan Arts
v Rosenblum, 201 AD2d 136, 138-139 [1994], lv denied 85 NY2d 921
[1995], cert denied 516 US 914 [1995]). A liberal standard
guides the inquiry of what is pertinent (see Lesser v
International Trust Co., 175 App Div 12, 16 [1916]), and
encompasses "any statement that may possibly or plausibly be
relevant or pertinent, with the barest rationality" (Joseph v
Larry Dorman, P.C., 177 AD2d 618, 619 [1991]; see Black v Green
Harbour Homeowners' Assn., Inc., 19 AD3d 962, 963 [2005]).
Moreover, the burden rests with claimant "to conclusively, and as
a matter of law, establish the impertinency and the irrelevance
of the statement" (Grasso v Mathew, 164 AD2d at 479).

      Here, claimant asserts that the memorandum was prepared by
a nonparticipant to the litigation which removes it from the
protection of the absolute privilege; however, this contention
ignores that claimant's action is grounded in the republication
of the alleged defamatory statement by the AAG, whose statements
are afforded the protection (cf. Park Knoll Assoc. v Schmidt, 59
NY2d 205, 209 [1983]). It is evident that the AAG turned over
the memorandum after the malpractice litigation had been
                              -4-                  519549

commenced in federal court (see Front, Inc. v Khalil, 24 NY3d
713, 718-720 [2015]) and, further, the statements in the
memorandum were clearly pertinent to the malpractice litigation,
as they concerned allegations that were relevant to the treatment
of the inmate (see Hadar v Pierce, 111 AD3d 439, 439 [2013], lv
denied 23 NY3d 904 [2014]; Lacher v Engel, 33 AD3d 10, 15 [2006];
Star v Simonelli, 76 AD2d 861, 861-862 [1980]). Accordingly, the
AAG's disclosure of the document is shielded by absolute
privilege (see Rabiea v Stein, 69 AD3d 700, 700-701 [2010];
Cavallaro v Pozzi, 28 AD3d 1075, 1077 [2006]), and claimant's
motion to amend the claim was properly denied as the proposed
cause of action had no merit (see Trupia v Lake George Cent.
School Dist., 62 AD3d 67, 68 [2009], affd 14 NY3d 392 [2010]).
In light of this determination, claimant's remaining contentions
are rendered academic.

     Lahtinen, J.P., McCarthy and Rose, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
