Opinion
February 2, 1961
Orders, entered on or about August 19, 1960, unanimously reversed, on the law, with $20 costs and disbursements to the appellants, and motion by defendant-appellant Gottesman to vacate warrant of attachment and to dismiss complaint for insufficiency granted, with $10 costs and motion by defendants-appellants Gutman, Goldberg and Null to dismiss complaint granted, with $10 costs. This action for alleged libel is based upon the alleged publication of defamatory matter in a pleading in a prior action to which the plaintiff here was not a party. Such matter, however, is not "clearly impertinent or beyond the scope of the issues involved" in such prior action, and, therefore, it is absolutely privileged. ( Goldwater v. Merchants Importing, 6 A.D.2d 777, and cases cited; also Marson v. Darrow, 8 A.D.2d 307; Prosser, Torts [2d ed.], pp. 608, 609.)
Concur — Breitel, J.P., Rabin, Valente, McNally and Eager, JJ.