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De Vivo v. Ascher

Decided: July 17, 1987.

EILEEN DE VIVO, PLAINTIFF,
v.
MICHAEL ASCHER, JOHN DOE I (A FICTITIOUS NAME), JOHN DOE II (A FICTITIOUS NAME), JANE DOE I (A FICTITIOUS NAME), AND JANE DOE II, (A FICTITIOUS NAME), DEFENDANTS



Civil Action.

Arnold, P.J.Cv.

Arnold

In this libel action plaintiff alleges that the defendant, a lawyer, defamed her when he wrote a letter to counsel for a third party, Johnson & Johnson, and accused plaintiff of "skimming" funds from a Johnson & Johnson account. The defendant has moved for summary judgment arguing that the letter was written in the course of judicial proceedings so that defendant enjoys an absolute privilege. The motion raises the novel issue of whether a letter written to a third party regarding a matter relevant to pending litigation is absolutely privileged when the third party is not a party to that litigation.

Plaintiff, Eileen DeVivo, was an employee of Triangle Travel. In October 1984 Triangle Travel brought suit against Ms. DeVivo. Triangle Travel was represented in that action by Michael Ascher, Esq., the defendant in the instant action. Triangle Travel's complaint alleged that Ms. DeVivo had:

1) unlawfully and without authority withdrawn $4,516.19 from Triangle Travel's checking account;

2) removed Triangle Travel's business records and altered them;

3) diverted customers from Triangle Travel;

4) accepted employment with another travel agency with the intent to interfere with Triangle Travel's economic advantage;

5) breached a fiduciary duty owed Triangle Travel;

6) damaged Triangle Travel's reputaton, and

7) diverted Triangle Travel's customers and accounts to herself.

Ms. DeVivo in her answer to Triangle Travel's complaint filed a counterclaim alleging that she was owed $4,516.19 for unpaid commissions and salary. Subsequently her lawyer wrote a letter to Mr. Ascher detailing the source of commissions claimed to be due Ms. DeVivo. Her lawyer asserted that $7,695.00 in commissions had been earned by Triangle Travel on a Johnson & Johnson account, that Ms. DeVivo was entitled to half, or $3,829.99, and that she was also owed $711.38 in commissions on other ...


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