Yuriy Margulis v. Daniel Z. Rivlin.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-389

YURIY MARGULIS

vs.

DANIEL Z. RIVLIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment

dismissing his complaint following a motion judge's order

allowing the defendant's motion to dismiss on the grounds that

the plaintiff's allegations in the complaint are all protected

by the litigation privilege. The defendant is an attorney who

represented the ex-husband of the plaintiff's daughter during

New York divorce proceedings. We agree with the judge that the

communications and actions by the defendant referenced in the

complaint were made "during the course of" the New York divorce

proceedings, and that those communications and actions are

protected by the litigation privilege. We affirm.
Background. In March 2015, divorce proceedings commenced

in New York between the plaintiff's daughter and her former

husband, David Bitton (Bitton). Bitton retained the defendant,

a New York licensed attorney, to represent him in the divorce

action. As part of that divorce action, the Supreme Court of

New York issued automatic court orders on March 23, 2015, which

provided in relevant part:

"Neither party shall transfer, encumber, assign, remove,
withdraw or in any way dispose of, without the consent of
the other party in writing, or by order of the court, any
property (including, but not limited to, real estate,
personal property, cash accounts, stocks, mutual funds,
bank accounts, cars and boats) individually or jointly held
by the parties . . . ."

The automatic court orders were to remain in effect until the

divorce was finalized, which occurred on June 4, 2019.

Meanwhile, on May 16, 2019, the Boston law firm of Butters

Brazilian LLP (Butters), who represented Bitton in several

lawsuits against the plaintiff, recorded two mortgages on

Bitton's property in Newton. One was in the amount of $350,000,

securing attorney's fees owed to Butters, and another was in the

amount of $100,000, securing attorney's fees owed to the

defendant for services in representing Bitton in the New York

divorce.

Jade Real Estate Investments, LLC (Jade), owned by the

plaintiff, had obtained a real estate attachment against

Bitton's Newton property. In August 2020, the Superior Court

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granted Jade an attachment increase on its previously held

$350,000 attachment to $476,951.12. 1 The court determined that

the second attachment "shall have a nunc pro tunc effective

date." In March 2022, in a separate action, the Superior Court

allowed the plaintiff's motion for an attachment on Bitton's

Newton property in the amount of $571,213.33. This attachment

was behind in priority to Jade's attachments and Butters's

mortgages.

On January 20, 2023, the plaintiff filed the present action

in Superior Court against the defendant for conspiracy,

negligent and reckless misrepresentation, fraud, and emotional

distress in connection with the defendant's actions, along with

Butters's, in obtaining mortgages on property owned by Bitton,

ahead in priority to "defraud" the plaintiff. In response, the

defendant brought a motion to dismiss alleging that the

plaintiff's claims were barred by the litigation privilege,

collateral estoppel, failure to name an indispensable party,

prematurity of claim, lack of personal jurisdiction, and failure

to state a plausible claim for relief. The Superior Court judge

allowed the defendant's motion on the grounds of the litigation

privilege but denied it on all other grounds. It is from this

dismissal that the plaintiff appeals.

1 Jade obtained the $350,000 attachment on Bitton's Newton
property in November 2016.

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Discussion. "We review the allowance of a motion to

dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass.

674, 676 (2011). In conducting our review, we accept as true

all the facts alleged in the complaint and draw all reasonable

inferences in the plaintiff's favor. See Flagg v. AliMed, Inc.,

466 Mass. 23, 26 (2013), citing Marram v. Kobrick Offshore Fund,

Ltd., 442 Mass. 43, 45 (2004).

The crux of the complaint here pertains to actions by the

defendant relating to the New York divorce proceeding.

Specifically, the plaintiff alleged that the defendant made

numerous misrepresentations to the New York Supreme Court,

including that the defendant incorrectly testified to the number

of outstanding obligations on Bitton's property. 2 In the

complaint, the plaintiff further alleged that the defendant

conspired with Butters to "defraud" the plaintiff, including by

filing for attachments on Bitton's property in violation of the

automatic court orders issued by the New York Supreme Court.

The plaintiff's claims of infliction of emotional distress stem

from the defendant's actions in his alleged misrepresentations

and fraud in New York. Simply put, the complaint's allegations

relate to the New York divorce proceedings.

2 As another example, the plaintiff alleged that the
defendant fabricated charges for communications with the
plaintiff's attorney that did not occur.

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The litigation privilege protects "statements by a party,

counsel or witness in the institution of, or during the course

of, a judicial proceeding . . . provided such statements relate

to that proceeding." Sriberg v. Raymond, 370 Mass. 105, 108

(1976). The privilege also "applies to an attorney's actions

during the course of a judicial proceeding, just as it does to

the attorney's communications." Bassichis v. Flores, 490 Mass.

143, 158 (2022). If the privilege attaches, its protections are

absolute. See Correllas v. Viveiros, 410 Mass. 314, 320 (1991).

At its core, the litigation privilege is intended to

protect participants in judicial proceedings from actions for

defamation based on communications made "preliminary to a

proposed judicial proceeding, or in the institution of, or

during the course and as a part of a judicial proceeding."

Sriberg, 370 Mass. at 108-109. See Correllas, 410 Mass. at 319-

320, 323 (privilege applies to defamatory statements made when

"police and prosecutors were contemplating a criminal action");

Aborn v. Lipson, 357 Mass. 71, 72-73 (1970) (privilege applies

to defamatory statements having "some reasonable relation or

reference" to proceeding); Giuffrida v. High Country Investor,

Inc., 73 Mass. App. Ct. 225, 242-243 (2008) (privilege applies

to defamatory statements when "legal action was contemplated

when the allegedly defamatory statements were made").

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"The privilege applies not only to defamation claims

brought against the attorney, but to civil liability generally."

Bartle v. Berry, 80 Mass. App. Ct. 372, 378 (2011). See

Correllas, 410 Mass. at 324 (privilege protects against claims

for intentional inflection of emotional distress); Doe v.

Nutter, McClennen & Fish, 41 Mass. App. Ct. 137, 137, 140-141

(1996) (privilege protects against invasion of privacy and

violations of Civil Rights Act and G. L. c. 93A); Sullivan v.

Birmingham, 11 Mass. App. Ct. 359, 360, 366-368 (1981)

(privilege protects against abuse of process, libel, and

negligence).

Where, as here, the communications referenced in the

complaint were made "during the course of" the New York divorce

proceedings, those communications are protected by the

litigation privilege. Sriberg, 370 Mass. at 108. Similarly,

the defendant's actions and conduct contested in the complaint

took place during the course of the New York divorce proceeding

in which the defendant was serving his client. See Bassichis,

490 Mass. at 158. Since the plaintiff's complaint only alleged

statements and actions made by the defendant while representing

Bitton and in furtherance of Bitton's interests, the litigation

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privilege applies and the motion to dismiss was properly

allowed.

Judgment affirmed.

By the Court (Vuono,
Brennan & D'Angelo, JJ. 3),

Clerk

Entered: March 26, 2025.

3 The panelists are listed in order of seniority.

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