425 Broadhollow Road
Suite 416
Melville, NY 11747

Freiberger Haber LLP
420 Lexington Avenue
Suite 300
New York, NY 10170


There is No Absolute Privilege to Defame Another in Court Papers

Print Article
  • Posted on: Aug 2 2023

By: Jeffrey M. Haber

Defamation is broadly defined as any false statement that harms the reputation of a person, business, or organization. It is a false statement “‘that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace.’”1 Defamation includes both libel and slander. Libel generally refers to defamatory statements that are published or broadcast in writing, while slander refers to statements that are verbally made.

To state a cause of action for defamation, a plaintiff must allege “a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.”2 “Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, … only statements alleging facts can properly be the subject of a defamation action.”3 

“A defamatory statement of fact is in contrast to ‘pure opinion’ which … is not actionable because ‘[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.’”4 “While a pure opinion cannot be the subject of a defamation claim, an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, … is a mixed opinion and is actionable.”5 “This requirement that the facts upon which the opinion is based are known ‘ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader’s] own conclusions concerning its validity.’”6 “What differentiates an actionable mixed opinion from a privileged, pure opinion is ‘the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker’s] opinion and are detrimental to the person’ being discussed.”7 “Distinguishing between fact and opinion is a question of law for the courts, to be decided based on ‘what the average person hearing or reading the communication would take it to mean.’”8 

A false statement constitutes defamation per se where, as relevant in Miserendino v. Cai, 2023 N.Y. Slip Op. 04031 (4th Dept. July 28, 2023) (here), the statement “charge[s] a person with committing a serious crime or … would tend to cause injury to a person’s profession or business.”9 “A statement imputing incompetence or dishonesty to the plaintiff is defamatory per se if there is some reference, direct or indirect, in the words or in the circumstances attending their utterance, which[, as in Miserendino,] connects the charge of incompetence or dishonesty to the particular profession or trade engaged in by plaintiff.”10 “Whether [a] particular statement[ is] considered defamatory per se is a question of law.”11 

As noted above, the statement claimed to be defamatory cannot be privileged. There are two types of privilege relevant to a defamation claim: absolute and qualified. 

“Absolute privilege … entirely immunizes an individual from liability in a defamation action [] regardless of the declarant’s motives.”12 It is “generally reserved for communications made by ‘individuals participating in a public function, such as judicial, legislative, or executive proceedings.’”13 “The absolute protection afforded such individuals is designed to ensure that their own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function.”14 

“On the other hand, a statement is subject to a qualified privilege when it ‘is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned.’”15 Circumstances in which a qualified privilege may apply include statements made in self-defense or to protect the safety of others, statements by an employer to a former employee’s prospective employer, communications made by an individual to a law enforcement officer,16 communications made to persons who share a common interest in the subject matter,17 and reports of official proceedings. “When subject to this form of conditional privilege, statements are protected if they were not made with ‘spite or ill will’ or ‘reckless disregard of whether [they were] false or not’ … , i.e., malice.”18 The plaintiff bears the burden of proving the speaker acted with malice.19 

“Whether allegedly defamatory statements are subject to an absolute or a qualified privilege depend[s] on the occasion and the position or status of the speaker …, a complex assessment that must take into account the specific character of the proceeding in which the communication is made.”20 

“In judicial proceedings[,] the protected participants include the Judge, the jurors, the attorneys, the parties and the witnesses,” who are granted the protection of absolute privilege “for the benefit of the public, to promote the administration of justice, and only incidentally for the protection of the participants.”21 “The immunity does not attach solely because the speaker is a Judge, attorney, party or a witness, but because the statements are … spoken in office.”22 Thus, for example, “statements made by counsel and parties in the course of ‘judicial proceedings’ are [absolutely] privileged as long as such statements ‘are material and pertinent to the questions involved … irrespective of the motive’ with which they are made.”23 The Court of Appeals has nonetheless “reiterated that [a]s a matter of policy, the courts confine absolute privilege to a very few situations.”24 

[Eds. Note: we previously examined claims for defamation, here.]

Against the foregoing principles, we examine Miserendino v. Cai.


Plaintiffs, Joy E. Miserendino (“Miserendino”) and her law firm, commenced the action against defendants, John J. Cai (“Cai”) and his cardiology medical practice, seeking damages for alleged defamatory statements that Cai – who had been romantically involved with Miserendino and had also performed work for her law firm – made about Miserendino after their relationship ended. 

During their relationship, Miserendino was counsel in a matter pending in the U.S. District Court for the Western District of New York, titled Blake v. United States (“Blake”). Blake was purportedly a high-value lawsuit. 

During the Blake litigation, opposing counsel inadvertently disclosed certain documents that were protected and should not have been turned over. Miserendino claimed that she notified opposing counsel of the issue and returned the documents without making use of the information contained in the documents.

Since the parties were in a relationship, Miserendino told Cai about receiving and returning the documents from opposing counsel in the Blake action.

As the relationship began to sour, Cai claimed that Miserendino owed him a substantial sum of money. To induce Miserendino to repay the money, Cai allegedly threatened to undermine Miserendino’s career and livelihood by defaming her reputation and position in her career, in particular in the Blake action

In that regard, Cai allegedly put the Blake verdict “on the line” by sending the judge overseeing the case a letter accusing Miserendino of acting illegally and unethically by intentionally using documents that “belong to the defense attorney and U.S. government.” In his letter, Cai stated that Miserendino had “possession” of these documents, stating that the original documents were held in his possession. Cai also stated that Miserendino “used these documents during the trial and the submission of arguments.” 

The Court in Blake did not “consider[]” the letter in issuing its decision.

Separately, Cai allegedly made defamatory statements about Miserendino to her former law partner with whom Miserendino was in litigation concerning the distribution of fees earned by their prior, co-owned law firm. At a meeting Cai arranged during the pendency of that litigation, Cai allegedly advised the former law partner that Miserendino had dissipated the fee recovered in a case that originated with the co-owned law practice, that Miserendino was hiding money and frequently used a money transfer company to send money elsewhere. Cai stated that Miserendino was “manipulative and ethically ‘sketchy.’” Shortly after the meeting, the former law partner used Cai’s alleged oral statements as the basis for his request in the pending litigation against Miserendino for the appointment of a temporary receiver and for injunctive relief. 

Defendants moved for summary judgment. The motion court granted the motion. On appeal, the Fourth Department unanimously reversed.

The Fourth Department’s Decision

With regard to the statements Cai allegedly made to Miserendino’s former law partner, the Court held that the motion court erred in determining that the statements “constituted pure opinion and were thus not actionable as a matter of law.”25 The Court found that the statements contained mixed statements of fact and opinion and, therefore, were actionable:

We conclude on this record that, “[a]lthough [Cai’s] comments were mixed statements of opinion and fact, the [former law partner] could reasonably infer, in light of [Cai’s personal and] working relationship with [Miserendino], that such statements were ‘based upon certain facts known to [Cai] that are undisclosed to the [former law partner] and are detrimental to [Miserendino].’”[26

With regard to the letter that Cai wrote to the judge in the Blake action, the Court held that the statements in the letter were actionable:

Upon “look[ing] to the over-all context in which the assertions were made” and “consider[ing] the content of the [letter] as a whole, as well as its tone and apparent purpose,” which was serious and seemingly designed to alert the federal judge to purported wrongdoing, we conclude that “ ‘the reasonable reader would have believed that the challenged statements were conveying facts about … plaintiff[s]’ ” …, namely, that plaintiffs actually retained possession of documents containing confidential information that had been inadvertently disclosed by opposing counsel in the federal case and that plaintiffs had used such documents to their advantage during the course of litigating the federal case.[27]  

Having determined that the statements made to the former law partner and the judge in the Blake action were actionable, the Court concluded that Plaintiff stated a claim for defamation per se.28 In this regard, the Court explained that the statements were “‘actionable as words that tend to injure another in his or her profession’ inasmuch as the statements [were] ‘more than a general reflection upon [Miserendino’s] character or qualities’ and, instead, ‘reflect on her performance or [are] incompatible with the proper conduct of her business [and profession]’ as an attorney operating law practices.”29 

The Court further held that the statements in the letter were not absolutely privileged and there were issues of fact as to whether the statements were protected by a qualified privilege.

As to the absolute privilege, the Court found that the absolute privilege did not apply to Cai because he “was not a party, a witness, or an attorney in the federal case.”30 “[A]lthough [Cai] may have performed some work on plaintiffs’ behalf during the course of the federal case,” said the Court, “his professional and personal relationship with Miserendino had ended months before his submission of the letter to the federal judge.”31 Thus, Cai “had no ‘office’ in the [federal] judicial proceedings and therefore … was not entitled to the immunity received by those who did,” concluded the Court.32 

As to the qualified privilege, the Court found that there were issues of fact as to whether Cai’s statements were motivated by malice: 

[W]e conclude that plaintiffs’ submissions—including Miserendino’s sworn statement that she had informed Cai prior to his submission of the letter that she had returned any confidential information inadvertently disclosed by opposing counsel in the federal case and text messages in which Cai arguably threatened Miserendino’s career and livelihood by alluding to his ability to jeopardize a potential verdict in the federal case if she did not agree to repay debts he believed she owed—“raised an issue of fact whether [Cai’s written] statements were motivated solely by malice and thus are not protected by a qualified privilege.”[33]


  1. Davis v. Boeheim, 24 N.Y.3d 262, 268 (2014) (quoting, Thomas H. v. Paul B., 18 N.Y.3d 580, 584 (2012)).
  2. D’Amico v. Correctional Med. Care, Inc., 120 A.D.3d 956, 962 (4th Dept. 2014).
  3. Gross v. New York Times Co., 82 N.Y.2d 146, 152-153 (1993); see also Davis, 24 N.Y.3d at 268.
  4. Davis, 24 N.Y.3d at 269 (quoting, Mann v. Abel, 10 N.Y.3d 271, 276 (2008), cert. denied, 555 U.S. 1170 (2009)).
  5. Id. (internal quotation marks omitted).
  6. Id.
  7. Id.
  8. Id. (quoting, Steinhilber v. Alphonse, 68 N.Y.2d 283, 290 (1986)).
  9. Geraci v. Probst, 15 N.Y.3d 336, 344 (2010); Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992).
  10. Van Lengen v. Parr, 136 A.D.2d 964, 964 (4th Dept. 1988).
  11. Geraci, 15 N.Y.3d at 344.
  12. Stega v. New York Downtown Hosp., 31 N.Y.3d 661, 669 (2018).
  13. Id. (quoting, Toker v. Pollak, 44 N.Y.2d 211, 219 (1978)).
  14. Stega, 31 N.Y.3d at 669; Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 365 (2007); Toker, 44 N.Y.2d at 219.
  15. Stega, 31 N.Y.3d at 669-670 (quoting, Toker, 44 N.Y.2d at 219).
  16. Toker, 44 N.Y.2d at 219-220.
  17. Liberman, 80 N.Y.2d at 437.
  18. Id. at 670 (quoting, Liberman, 80 N.Y.2d at 437-438).
  19. Id.
  20. Id.
  21. Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209 (1983).
  22. Id. at 210.
  23. Wiener v. Weintraub, 22 N.Y.2d 330, 331 (1968) (quoting, Marsh v. Ellsworth, 50 N.Y. 309, 311 (1872)); see also Stega, 31 N.Y.3d at 669.
  24. Stega, 31 N.Y.3d at 670.
  25. Slip Op. at *2.
  26. Id. (quoting, Zulawski v. Taylor, 63 A.D.3d 1552, 1553 (4th Dept. 2009)).
  27. Id. (quoting, (Brian v. Richardson, 87 N.Y.2d 46, 51 (1995)).
  28. Id.
  29. Id. (quoting, Golub v. Enquirer/Star Grp., Inc., 89 N.Y.2d 1074, 1076 (1997) and citing Liberman, 80 N.Y.2d at 436).
  30. Id.
  31. Id.
  32. Id. at *3-*4 (citing, Park Knoll Assoc., 59 N.Y.2d at 210; Silverman v Clark, 35 A.D.3d 1, 12 (1st Dept. 2006); Garson v. Hendlin, 141 A.D.2d 55, 59 (2d Dept. 1988), lv. denied, 74 N.Y.2d 603 (1989)).
  33. Id. at *4 (citations omitted).

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP commercial litigation attorneys.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

Freiberger Haber LLP
Copyright ©2022 Freiberger Haber LLP | Disclaimer
Attorney advertisement | Prior results do not guarantee a similar outcome.
425 Broadhollow Road, Suite 416, Melville, NY 11747 | (631) 574-4454
420 Lexington Avenue, Suite 300, New York, NY 10017 | (212) 209-1005
Attorney Website by Omnizant