Moreover, public policy dictates that certain communications, although defamatory, cannot be used as a basis for liability in a defamation suit. Shenkman v. O`Malley, 2 A.D.2d 567, 572, 157 N.Y.S.2d 290, 295 (1 Dep`t 1956). Communications that fall into this category are considered privileged and enjoy absolute or conditional immunity from claims. “In the context of legal proceedings, statements by the parties and their lawyers shall be absolutely privileged if, for whatever reason or in no case, they are relevant to the dispute.” Aequitron Medical, Inc. v Dyro, 999 F. Supp. 294, 297-98 (E.D.N.Y.1998) (internal citations omitted). Relevance will be interpreted generously and will represent “anything that can be relevant or plausibly relevant or relevant with the least rationality, regardless of any degree of tangible *496 or pragmatic probability.” O`Brien v. Alexander, 898 F.
Supp. 162, 171 (S.D.N.Y.1995), aff`d, 101 F.3d 1479 (2d Cir. 1996) (citing Grasso v. Mathew, 164 A.D.2d 476, 564 N.Y.S.2d 576, 578 (3d Dep`t 1991)). Accordingly, the statements allegedly made by Weiss, whether defamatory or not, and characterized by Vasile as perjury testimony, made on October 9, 1996 before Oshrin J. and June 29, 1994 before Underwood J.A., are absolutely privileged and immune from defamation. If, as the report shows, Weiss`s statements in 1990 amounted to conveying alleged claims of his clients in the divorce action, they are also privileged. See The Savage is Loose Co. v. United Artists Theatre Circuit, Inc., 413 F. Supp.
555 (N.Y.D.R. 1976). The seriousness of Vasile`s complaints, whether against judges, lawyers or Sheila Enright, and whatever legal theories are defended therein, stems from his utter disregard for Justice Underwood`s default judgment in favour of Sheila Enright and Carmine Vasile, and his incessant attempts to quash, to annul, circumvent or challenge the verdict. Since the plaintiff`s allegations against Underwood J. arise from the same facts, default judgment and any subsequent refusal to review *492 or revoke res judicata preclude immediate action. Applying the four conditions to immediate action, the Court`s decision, Case No. 96-CV-3640, was a final judgment on the merits rendered by a competent court with the participation of Carmine Vasile and Judge Underwood. The fourth condition for the application of res judicata is that the two forms of order sought constitute the same plea. The test used to determine what constitutes the same plea has been formulated in various ways by the Second Circuit. The relevant criteria are whether any other decision in the second case would prejudice or destroy rights or interests established by the judgment in the first appeal, whether the same evidence is necessary to maintain the second plea, as was necessary in the first case, and whether the essential facts and issues of the second case were present in the first case. Herendeen v Champion Int`l Corp., 525 F.2d 130, 133-34 (2d Cir.1975); Tucker v. Arthur Andersen & Co., 646 F.2d 721, 727 (2d Cir.1981).
In more recent Second Channel cases, the duty impairment element has been omitted and added to the other two factors, “whether the same transaction or a series of related transactions is involved”. See S.E.C. v. First Jersey Sec., Inc., 101 F.3d 1450, 1463-64 (2d Cir.1996), cert. denied, ___ U.S. ___, 118 pp. Ct. 57, 139 L.
Ed. 2D 21 (1997); Prime Management Co., Inc. v. Steinegger, 904 F.2d 811, 815 (2d Cir.1990). Other decisions often destroy the various criteria by emphasizing that the decisive element underlying all these standards is the factual predicate of the various claims invoked, “or it is the facts surrounding the transaction or event that constitute the cause of action, not the legal theory on which a litigant relies.” Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir.1991) (cited Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1234 (2d Cir.), cert. denied, 434 U.S. 903, 98 pp. Ct.
300, 54 L. Ed. 2d 190 (1977)); Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992) (“It is this identity of the facts surrounding the event that constitutes the cause of action, not the legal theory, on which Woods based his claim”), cert. denied, 506 U.S. 1053, 113 p. ct. 977, 122 L. ed. 2D 131 (1993); Ramirez v Brooklyn Aids Task Force, 175 F.R.D.
423, 427 (E.D.N.Y.1997). Whatever they are worded, Vasile`s claims against Judge Underwood mimic allegations from the previous trial, violations of constitutional rights, and conspiracy. Under New York law, the four elements that make up a claim for intentional infliction of emotional distress are: 1) extreme and outrageous behavior; (2) intent to cause stress or knowledge that the defendant`s conduct would result in emotional distress; 3) severe emotional distress; and (4) a causal link between the defendant`s conduct and the injury suffered by the plaintiff. See Gay v. Carlson, 60 F.3d 83, 89 (2d Cir.1995) (Application of New York Law). The courts of New York have strictly applied these elements. Vasile`s behavior over the past year is characteristic of someone who suffers from stress or emotional turmoil and fulfills the third element. In particular, Vasile alleges that Weiss`s conduct caused Vasile to incur high legal fees and significant financial losses due to the waste of matrimonial property.
The defense of the client in the divorce proceedings usually leads to the objection resulting in legal fees and the disappearance of marital property. Vasile failed to even minimally establish the first two of the four elements required to enforce a prosecution for intentionally inflicting emotional distress. He did not show any outrageous behavior or the requisite intent. For an allegation of intentional infliction of emotional suffering to be punishable, the alleged conduct must be “so outrageous and of such magnitude that it transcends all possible limits of decency and is considered cruel and utterly intolerable in a civilized community.” Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86 (1983) (cited Restatement (Second) of Torts ง 46, commentary d (1979)); see also Prosser, Handbook of the Law of Torts ง 12, p. 56 (4. Auflage 1971) (“there is responsibility for behaviour that transcends all boundaries normally tolerated by a decent society, of a type particularly likely to cause and cause psychological distress of a very serious nature”). Given that the plaintiff has not alleged outrageous conduct and the facts cannot support such a conclusion, the defendant Weiss` claim to dismiss Vasile`s claim for intentionally inflicting emotional distress is dismissed with prejudice. Plaintiff Carmine Vasile`s lawsuit against defendant Weiss alleges the litany of claims made against the other defendants, including interstate fraud and criminal enterprise, malicious abuse of legal process, defamation, money laundering, intentional infliction of emotional distress, and defamation. The factual predicate to these allegations appears to be a statement by Weiss to a Department of Defense investigator that took place on or before March 30, 1990, in which the investigator stated that the court`s duty was simply “to assess the legal feasibility of the complaint, not the weight of evidence that might be presented in support.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980); Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985).
The appropriate investigation is therefore not “whether an applicant will ultimately prevail, but whether the applicant is entitled to provide evidence in support of the allegations”. Scheuer, 416 U.S. to 236, 94 S. Ct. to 1686; Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir.1991) (plaintiff not required to prove case at the plea stage). Respondent Dean Witter submits that this action should be dismissed on many independent grounds. The seriousness of Vasile`s lawsuit against Dean Witter stems from an alleged series of transfers in or about May 1990 of approximately $176,000 of matrimonial and matrimonial property and under the Uniform Gifts for Minors Act (“UGMA”) held in Dean Witter`s accounts, in particular account numbers XXX-XXXXXX, and that UGMA`s assets were illegally transferred to margin accounts, in violation of a court-ordered order. Dean Witter responds: (1) the injunction was terminated prior to the disputed account`s activity; (2) the injunction had no legal effect on Dean Witter; (3) the accounts in question were registered in the name of Sheila Enright and Robyn Enright, so Dean Witter had no fiduciary duty to Carmine Vasile; (4) Vasile did not allege fraud; (5) Vasile did not file a RICO claim; (6) Dean Witter is exempt from liability under UMMA; (7) Dean Witter cannot be held liable; and (8) Vasile`s claims become time-barred. Judge Underwood broke the law, Vasile alleges, by issuing an order preventing Vasile from bringing a lawsuit or proceeding against Sheila Enright in his court without the court`s prior approval to ensure the claim was made in good faith. Justice Oshrin allegedly broke the law by failing to protect Vasile from Justice Underwood`s abuse of trial, by rejecting Vasile`s requests for judicial intervention, and by failing to give instructions to Judge Underwood. As discussed below, these judicial acts of Justices Underwood and Oshrin are measures taken in accordance with their jurisdiction and inherent power to “administer their own proceedings.” to control the behavior of those who appear before them.
[and] to punish conduct that abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 33, 111 S. Ct. 2123, 2126, 115 L. Ed. 2d 27 (1991). Just as I restricted Vasile`s right to file additional documents and initiate new proceedings without the prior authorization of this court*478, Judge Underwood was also empowered.
