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Keywords

contractbreach of contractplaintiffdefendantattorney

plaintiffdefendant

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Silverman v. Clark, 35 A.D.3d 1, 822 N.Y.S.2d 9, 2006 N.Y. Slip Op. 06814

Facts

Plaintiff Silverman, a former associate attorney, brought a defamation action against her former employer, Bruce G. Clark, after he sent letters to former clients disparaging her professional competence following her resignation. Silverman had left the firm citing conflicts of interest and subsequently took clients with her. Clark's letters accused her of incompetence and suggested that clients would be better served by returning to his firm. The dispute arose over the statements made in these letters and whether they were defamatory.

The action was brought by plaintiff against her former employers, the law firm of Bruce G. Clark & Assocs., P.C. and Bruce G. Clark, Esq. (Clark), the firm's principal. Plaintiff worked as a nurse from 1979 until 1993, when she enrolled in law school. She graduated in 1996 and was admitted to the bar shortly thereafter.

Issue

The main legal issues were whether the letters sent by Clark were protected by any privilege and whether the statements made were true or constituted non-actionable opinion.

Defendants first argue that Supreme Court erred in not dismissing the first and second causes of action because the Garrett and Lunger letters were protected by the qualified common interest privilege.

Rule

The court applied the principles of defamation law, including the defenses of truth and qualified privilege, and determined that a statement must be proven false to be actionable.

It is well established that even if a statement is defamatory, a qualified privilege exists where the communication is made to persons who share a common interest in the subject matter.

Analysis

The court found that the common interest privilege did not apply because Clark's interest in the outcome of the cases was purely pecuniary and did not align with the clients' interests. Furthermore, the court determined that Clark's statements were largely factual assertions regarding Silverman's professional abilities, which he supported with evidence. Since Silverman failed to raise a triable issue of fact regarding the falsity of these statements, the defamation claims were dismissed.

Having reviewed these authorities, we conclude that the individual pecuniary interests of Garrett, the Lungers and Clark in the successful outcome of their cases do not fall within the common interest privilege.

Conclusion

The court reversed the lower court's decision, dismissing Silverman's defamation claims based on the defense of truth and also dismissing her breach of contract claim due to her admission regarding the inapplicability of the alleged agreement.

Accordingly, we hold that no qualified privilege exists as a matter of law.

Who won?

Defendants (Bruce G. Clark & Assocs., P.C. and Bruce G. Clark) prevailed because the court found that the statements made in the letters were true and not actionable as defamation.

Defendants contend that Clark shared a deep common interest with Garrett and the Lungers, to wit, a successful outcome of their cases.

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