Rather than try to boil this case down, we quote fromHadar v Pierce 2013 NY Slip Op 30185(U)
January 4, 2013 Sup Ct, New York County Docket Number: 652811/11 Judge: Eileen Bransten.
"This action arises from an underlying dispute between Eric Hadar and his father Richard Hadar. Eric Hadar has been a successful real estate developer for over fifteen years. Affirmation of John S. Rand, Ex. A. ("Comp!."), ~ 3. Eric Hadar suffered from drug addiction, and, on October 3,2008, he was arrested for drug possession. Id. at ~ 26. Eric Hadar subsequently entered a rehabilitation program. Id. Richard Hadar offered to "hold down the fort" at Eric Hadar’s real estate business
until Eric Hadar completed his treatment. Id. at ~ 28. Plaintiffs claim that, rather than "hold down the fort," Richard Hadar took advantage of his son’s absence to attempt to wrest control of the real estate business from Eric Hadar. Id. Plaintiffs claim that Richard Hadar’s plan to accomplish this scheme was to accuse his son of mismanagement of the real estate company and the EDHFT. Id. at ~ 28. For example, Plaintiffs assert that, in January or February 2009, Richard Hadar and his attorney,Michael Rosenbaum, told partners in Lawrence One, L.P., which was one of Eric Hadar’s
real estate ventures and Robert Weir, who was then the trustee of the EDHFT, that Eric Hadar: (1) mismanaged and neglected various properties and trusts; (2) engaged in self dealing by taking interest-free loans and misappropriating assets from EDHFT; (3) along with Allied Partners, charged excessive and unauthorized management fees; (4) negligently managed a property near Kennedy Airport known as "Carlton House"; and (5) was no longer able to manage real estate competently. Id at ~ 30. Rosenbaum prepared a letter containing these alleged mis representations and had Weir and Yohalem sign the letter. Id. at ~ 31. On February 11,2009, Richard Hadar, Ira Yohalem as trustee of the Joshua D. Hadar Family Trust ("JDHFT") and several holding companies for Eric Hadar’s various real estate developments (the "Holding Company Plaintiffs") brought an action against Eric Hadar, Allied and JFK (the "Prior Action"). Winter Affirm., Ex. A, p. 1. Defendants Rosenbaum and Patterson served as plaintiffs’ attorneys. Id. The plaintiffs in the Prior Action accused Eric Hadar of mismanaging and wasting the plaintiffs’ assets and investments. Id. at p. 9. The Prior Action alleged breach of fiduciary duty, breach of contract, and sought to remove Eric Hadar from his position as a manager of the Holding Company Plaintiffs and to enjoin Eric Hadar from taking any further action as manager. Id at pp. 18-24.
Defendants assert that the "judicial proceedings privilege" shields them from liability for bringing the Prior Action and the Surrogates Action. Defendants argue that all of Plaintiffs’ claims derive from the filing of these lawsuits, and, because the filing of lawsuits is protected by the judicial proceedings privilege, the complaint should be dismissed in its entirety. Defamation Claim Against Rosenbaum Ordinarily, "a statement made in the course of legal proceedings is absolutely privileged ifit is at all pertinent to the litigation." Sexter & Warmflash, PC. v. Margrabe,
38 A.D2d 163, 171 (1st Dep’t 2007) (internal citations and quotation marks omitted). However, the "privilege may not be extended to a litigant who commences a sham lawsuit for the sole purpose of defaming his adversary." Sexter & Warmflash, P.C., 38 A.D2d at 173, n. 5. Plaintiffs have alleged that Rosenbaum commenced the Prior Litigation against Eric Hadar solely to harass and disparage Eric Hadar in an effort to alienate his partners and investors in his real estate business. PI. Memo, pp. 8-9. Plaintiffs further claim that the allegations in the Prior Action and Surrogates Court Action were patently false, and that Rosenbaum conspired with Richard Hadar to invent the allegations. Plaintiffs assert that Rosenbaum was assisting Richard Hadar in his ultimate goal of taking over Eric Hadar’s real estate business."
The balance of the motion to dismiss was denied. Read on, in the decision, for privity, privilege and documentary evidence issues.