On appeal from Superior Court, Law Division, Morris County.
Before Judges Pressler, Landau and Conley.
The opinion of the court was delivered by
Plaintiff Charles W. Geyer, Sr. instituted an action in the Law Division, Morris County, against defendant Alfred L. Faiella, who is executive director of the Newark Economic Development Corporation (NEDC), and defendant Brown & Brown, P.C. (Brown firm), Faiella's attorneys. Raymond A. Brown, Esq. (Brown) is a member of the Brown firm.
The complaint asserts Faiella concocted a false story that Geyer had threatened his life; related it to Brown orally and in writing; and that Brown, aware of its falsity, republished the "lie" to the United States Attorney's office.
The complaint further asserts that "Faiella and Brown's lies were deliberately made with intent to induce the U.S. Attorney's Office to prosecute Geyer"; that the Grand Jury did not return an indictment; that the criminal proceeding was terminated by the U.S. Attorney in Geyer's favor; and that Geyer suffered resulting injury, including emotional distress. Faiella's actions are attributed in the complaint to an attempt to destroy Geyer's reputation and business "in retaliation for Geyer's exposing Faiella's criminal activities as NEDC's Executive Director," including "trying to shake [plaintiff] down for $100,000 per year" in exchange for securing NEDC's approval of a refinancing on property primarily owned by Geyer.
Based upon these allegations, Geyer's complaint sought recovery from Faiella and the Brown firm for malicious prosecution and defamation of a private figure.
Faiella and the Brown firm each moved to dismiss the complaint, pursuant to R. 4:6-2(e), for failure to state a claim upon which relief may be granted. The motions for dismissal were granted with prejudice. Geyer appealed. We reverse.
Reversal here is based upon the incorrect legal standards applied in dismissing the defamation and malicious prosecution counts, and upon the extraordinarily limited range of a R. 4:6-2(e) motion which, brought at the onset of litigation, is granted only in "the rarest instances", Lieberman v. Port Authority of New York and New Jersey, 132 N.J. 76, 79, 622 A.2d 1295 (1993); Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 772, 563 A.2d 31 (1989), taking the facts asserted in the complaint as true and drawing all reasonable inferences in favor of the plaintiff.*fn1 Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192, 536 A.2d 237 (1988). Moreover, when granted, barring other impediments such as a statute of limitations, the dismissal should be without prejudice. Printing Mart, supra.
The motion Judge dismissed the defamation count as to both defendants, concluding that the statements, oral and written, were absolutely privileged as "the beginning of the institution of a proceeding ... even if activated by malice." We assume that the Judge's "malice" reference was to "actual malice" in the sense of "knowledge that [the statement] was false or with reckless disregard of whether it was false or not." See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
A statement that accuses a person of a threat to kill asserts a serious crime which is sufficient to denigrate the reputation of the alleged actor. It is thus defamatory per se unless truth is established. See Lawrence v. Bauer Pub. & Print. Ltd., 89 N.J. 451, 459-461, 446 A.2d 469 (1982), cert. denied, 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982). It has long been held, however, that a statement made by a Judge, attorney, witness, party, or juror in the course of judicial proceedings, and having some relation thereto, is absolutely privileged. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 563, 569 A.2d 793 (1990); Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 558, 117 A.2d 889 (1955). In DeVivo v. Ascher, 228 N.J. Super. 453, 458 (App. Div. 1988), certif. denied, 114 N.J. 482 (1989), we expressed a preference for the view that a broad interpretation be given to the phrase "in the course of a judicial proceeding."
Without question, "In defamation actions, the existence vel non of privilege is basically a question of law for the court's determination." Lawrence, supra, 89 N.J. at 462. Thus, the propriety of dismissal of the defamation count on the pleadings in this case hinges primarily on whether the motion Judge correctly applied an absolute, as distinct from qualified, privilege to the oral and written complaints made to federal prosecutorial officials. These publications constitute the principal focus of the pleadings. Plaintiff also complains of the incidental publication by Faiella to his attorney, Brown. We see no sound basis in law or policy to afford an absolute privilege for knowingly false statements communicated to one's attorney ...