Opinion
July 14, 1992
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Callahan, J.P., Green, Lawton, Boehm and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants' motion for summary judgment dismissing plaintiff's complaint. Contrary to plaintiff's assertions, we conclude that the statement contained in the information subpoena mailed to plaintiff's employer is not libelous per se (see, Wilson v. Merrill Lynch, Pierce, Fenner Smith, 111 A.D.2d 807, affd 66 N.Y.2d 988; 43 N.Y. Jur 2d, Defamation and Privacy, §§ 7, 8), and, therefore, the second, fourth and sixth causes of action were correctly dismissed. Moreover, the statements contained in the information subpoena were absolutely privileged because they were made in the course of a judicial proceeding in which plaintiff was a named party and were material and pertinent to the litigation (see, CPLR 5223; Baratta v. Hubbard, 136 A.D.2d 467, 468-469; Klein v. McGauley, 29 A.D.2d 418, 420; Cooper v. Stone, 14 A.D.2d 814; Schneider v Sachs Quality Stores, 14 Misc.2d 582, 583). Additionally, the circumstance that the information subpoena issued in the proceeding was affected by mistaken identity does not "deprive the legal process of that privilege" (Schneider v. Sachs Quality Stores, supra, at 584).
Plaintiff's remaining causes of action, which seek recovery for the infliction of emotional distress due to defendants' alleged gross negligence, also properly were dismissed. Plaintiff failed to offer any evidence that defendants were guilty of conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'" (Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303).