a lawsuit, which will set the precedent

[igoraf]

this is taken from another message board:

I'm posting some links here, and while they're pretty lengthy reading, it's extremely worthwhile. Have you ever bought anything? Do you post on internet bulletin boards? Then this suit affects you whether you like it or not. Apparently a New-York based aquarium supply company is suing a former customer, the moderators of the bbs, the owner of the bbs, the company that provides the web-hosting for the bbs, and then multiple posters who commented on the company after the lawsuit was filed. Why are they suing? Because the posters gave their opinions (negative) of the company after receiving bad service, and apparently the company thinks this is libel and defamation of character.

I've never seen anything like this before and it has really begun to bother me. The company in question is asking for millions from these people who will obviously be crippled financially from the court costs alone. There is
no way that this company can present a case to prove slander or libel, which requires proof of malice aforethought, I believe, plus,it is an obvious violation of first amendment rights. No one was posting lies, and the original poster was simply stating the truth, which is not grounds for a suit. If every store or supplier who was
criticized on-line did this, the US court systems would be filled with frivolous lawsuits such as these, just check any board and you will find criticims of suppliers, stores, and their practices. It is people's way of warning other people about previous bad experiences. But to sue just because this was written and not verbal? (which is
what it comes down to). That is completely ludicrous.

How do you, as a consumer feel? Obviously this case if won would set a precedent for every crap company that gets some criticism to seek damages from their customers. I've spoken negatively about companies on this site. Heck, I bash the Lakers (who are ultimately a company) almost daily! Could you imagine yourself, the moderators of your board, and the admins getting sued for millions of dollars because of it? This is pathetic. If you feel as strongly about this as I do, email the company (you'll find the link in my links) and the Better Business Bureau and tell them about it.
One last thing. I have had no dealings with the company in question, and am simply providing my personal opinions on the pending lawsuit. These are not the opinions of Fanhome, it's administrators, or it's moderators.

http://www.aquariacentral.com/forum...TML/000120.html

and I totally agree with this:

This has a very real possibility to cost the admins / mods a whole bunch of time and money -- not because the lawsuit will win (The aim of this sort of suit (called a SLAPP, strategic lawsuit against public participation) is to cause others to be afraid to criticize the party suing for fear of also being sued) but because the costs to defend would be so great.

 

[samtha25]

In New York, there was legislation passed to inhibit SLAPP suits, after developers started using them against environmental and community groups opposed to projects. I don't recall the details, but it had to do with the party bringing the suit having to pay legal costs of the other side. It ahs been effective.

 

[Michael Wechsler]

Anti-SLAPP Statute

New York Statutes

Contents (October 22, 1995). Materials on New York include sections 70-a and 76-a, Civil Rights Code; and N.Y. Civ. Prac. L. & R. 3211(g) and 3212(h).



McKinney's Consolidated Laws of New York Annotated
Civil Rights Law
Chapter 6 of the Consolidated Laws
Article 7 -- Miscellaneous Rights and Immunities

s 70-a. Actions involving public petition and participation; recovery of damages

1. A defendant in an action involving public petition and participation, as defined in paragraph (a) of subdivision one of section seventy-six-a of this article, may maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action; provided that:

(a) costs and attorney's fees may be recovered upon a demonstration that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law;

(b) other compensatory damages may only be recovered upon an additional demonstration that the action involving public petition and participation was commenced or continued for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights; and

(c) punitive damages may only be recovered upon an additional demonstration that the action involving public petition and participation was commenced or continued for the sole purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.

2. The right to bring an action under this section can be waived only if it is waived specifically.

3. Nothing in this section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, or by statute, law or rule.


Notes
(Added L.1992, c. 767, s 2.) L.1992, c. 767, s 6, provided: " This act [enacting this section and s 76-a and amending CPLR 3211 and 3212] shall take effect on the first day of January next succeeding the date on which it shall have become a law [eff. Jan. 1, 1993], provided that this act shall not affect any action, claim, cross claim or counterclaim commenced prior to the effective date of this act."

"Legislation Provides Prompt Review of SLAPP Suits", Terry Rice, 210 N.Y.L.J. 1 (1993).


s 76-a. Actions involving public petition and participation; when actual malice to be proven

1. For purposes of this section:

(a) An "action involving public petition and participation" is an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.

(b) "Public applicant or permittee" shall mean any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission.

(c) "Communication" shall mean any statement, claim, allegation in a proceeding, decision, protest, writing, argument, contention or other expression.

(d) "Government body" shall mean any municipality, the state, any other political subdivision or agency of such, the federal government, any public benefit corporation, or any public authority, board, or commission.

2. In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.

3. Nothing in this section shall be construed to limit any constitutional, statutory or common law protections of defendants to actions involving public petition and participation.


Notes
(Added L.1992, c. 767, s 3.) Section effective Jan. 1, 1993, pursuant to L.1992, c. 767, s 6.





--------------------------------------------------------------------------------


N.Y. Civil Practice Law and Rules
Rule 3211

[Paragraphs (a) through (f) omitted here]

(g) Standards for motions to dismiss in certain cases involving public petition and participation. A motion to dismiss based on paragraph seven of subdivision (a) of this section, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in paragraph (a) of subdivision one of section seventy-six-a [sec. 76-a(1)(a)] of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion.


Notes
Subdivision (g) added 1992 (L. 1992, c. 767, s. 4) effective Jan. 1, 1993.


Rule 3212

[Paragraphs (a) through (g) omitted here]

(h) Standards for summary judgment in certain cases involving public petition and participation. A motion for summary judgment, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation, as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the action, claim, cross claim or counterclaim has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion.


Notes
Subdivision (h) added in 1992 (L.1992, c. 767, s. 5), effective Jan. 1, 1993.

 

[Michael Wechsler]

Ant-SLAPP Court Cases

Cases

West Branch Conservation Association v. Town of Clarkstown New York Supreme Court, Appellate Division, 1995 (222 A.D.2d 513, 636 N.Y.S.2d 61)

Trial Courts

Harfenes v. Sea Gate Association, 647 N.Y.S. 2d 329, 167 Misc.2d 647 (N.Y. Sup. Ct. 1995)

In the Matter of Entertainment Partners Group, Inc. v. Davis, 590 N.Y.S.2d 979 (N.Y. Sup. Ct. 1992)

In the Matter of Gordon v. Marrone, 590 N.Y.S.2d 649 (N.Y. Sup. Ct. 1992)

 

[Michael Wechsler]

West Branch Conservation Assoc. v. Town of Clarkstown
Cite as: 222 A.D.2d 513, 636 N.Y.S.2d 61



In the Matter of WEST BRANCH CONSERVATION ASSOCIATION, INC., et al.,
Appellants,
v.
PLANNING BOARD OF the TOWN OF CLARKSTOWN, Respondent,
Hi-Tor Realty, Inc., Intervenor-Respondent.
New York Supreme Court, Appellate Division,
Second Department.
Dec. 11, 1995.
COUNSEL:
Harris Beach & Wilcox, Albany (Andrew W. Gilchrist, of counsel), for appellants.
Schwartz, Kobb & Scheinert, Nanuet (Joel L. Scheinert, of counsel), for intervenor-respondent.

Before BRACKEN, J.P., and ROSENBLATT, MILLER and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Clarkstown, dated October 28, 1992, which made a negative declaration pursuant to the State Environmental Quality Review Act (ECL 8-0101 et seq.) and preliminarily approved a subdivision application, the petitioners appeal from so much of an order of the Supreme Court, Rockland County (Scarpino, J.), dated May 18, 1994, as, upon annulling the determination and remitting the matter to the respondent for further proceedings and upon granting the branch of their motion which was to dismiss the respondent's counterclaims, denied the branch of their motion which was for costs and attorneys' fees pursuant to Civil Rights Law ss 70-a and 76-a. The appeal brings up for review so much of an order of the same court, dated September 28, 1994, as, upon reargument, adhered to the original determination (see, CPLR 5517 ).

ORDERED that on the court's own motion, the appellants' notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c] ); and it is further,

ORDERED that the appeal from the order dated May 18, 1994, is dismissed, as that order was superseded by the order dated September 28, 1994, made upon reargument; and it is further,

ORDERED that the order dated September 28, 1994, is affirmed insofar as reviewed; and it is further,

ORDERED that the intervenor-respondent is awarded one bill of costs.

The intervenor-respondent Hi-Tor Realty, Inc. (hereinafter Hi-Tor) is the owner of a 52-acre parcel of land located on the slopes of High Tor Mountain in Rockland County. In 1988, Hi-Tor submitted an application to the Planning Board of the Town of Clarkstown (hereinafter the Planning Board) seeking permission to subdivide the property into residential lots. The Planning Board subsequently performed an environmental review of the project pursuant to the State Environmental Quality Review Act (hereinafter SEQRA), and determined that the project would not have a significant effect on the environment. Thus, the Planning Board issued a negative declaration, and granted preliminary subdivision approval to the project.

The petitioners, West Branch Conservation Association, Inc., a not-for-profit corporation dedicated to environmental protection, and Marcus Ratliff, an adjoining property owner, thereafter commenced a CPLR article 78 proceeding to challenge the Planning Board's determination (hereinafter Proceeding No. 1). Although the Supreme Court subsequently dismissed the petition in Proceeding No. 1, on September 19, 1994, this court reversed the judgment of the Supreme Court and remitted the matter to the Planning Board for the preparation of an Environmental Impact Statement (see, Matter of West Branch Conservation Assn. v. Planning Bd. of Town of Clarkstown, 207 A.D.2d 837, 616 N.Y.S.2d 550).

While the appeal in Proceeding No. 1 was still pending, Hi-Tor submitted an application to modify its subdivision plan, and in October 1992, the Planning Board again issued a negative declaration under SEQRA and approved the amended plan. The petitioners then commenced the instant proceeding challenging the issuance of a negative declaration and the grant of preliminary subdivision approval for the amended plan. In its answer to the second petition, Hi-Tor interposed a counterclaim alleging that the proceeding had been filed for the sole purpose of harassing Hi-Tor in the development of its property, and demanding damages in the sum of $500,000 for abuse of process. The petitioners subsequently moved to dismiss the counterclaim, and for an award of attorneys' fees and costs pursuant to Civil Rights Law ss 70-a and 76-a, upon the ground that the counterclaim constituted a SLAPP (Strategic Lawsuit Against Public Participation) suit. Although the Supreme Court granted the branch of the petitioners' motion which was to dismiss Hi-Tor's counterclaim, it denied the branch of the motion which was for costs and attorneys' fees.

On appeal, the petitioners contend that the Supreme Court's failure to award costs and attorneys' fees upon dismissal of the counterclaim was error because it frustrates the legislative intent underlying Civil Rights Law ss 70-a and 76-a. Contrary to the petitioners' contention, even if we were to assume that Hi-Tor's counterclaim was properly characterized as a SLAPP suit, the Civil Rights Law does not mandate the imposition of costs and attorneys' fees in every situation in which such a claim is interposed. Indeed, to the contrary, Civil Rights Law s 70-a(1)(a) provides, in pertinent part, only that "costs and attorney's fees may be recovered" (emphasis added) upon a demonstration that a frivolous claim has been interposed against a party in an action involving "public petition and participation". Accordingly, while it is clear that "New York State public policy strongly disfavors SLAPP suits designed to chill the exercise of a citizen's right to petition the government or appropriate administrative agency for redress of a perceived wrong" (Matter of Entertainment Partners Group v. Davis, 198 A.D.2d 63, 64, 603 N.Y.S.2d 439), it is also clear that the unambiguous use of the term "may" in the statute makes the decision to award attorneys' fees and costs discretionary rather than mandatory (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes s 76; Matter of Daniel C., 99 A.D.2d 35, 41, 472 N.Y.S.2d 666). We discern no improvident exercise of the court's discretion in declining to award costs and attorneys' fees under the circumstances of this case.

 

[Michael Wechsler]

Harfenes v. Sea Gate Association
Cite as: 167 Misc.2d 647, 647 N.Y.S.2d 329



Reuben J. HARFENES, et al., Plaintiffs,
v.
SEA GATE ASSOCIATION, INC., et al., Defendants.
Supreme Court, New York County
Aug. 10, 1995


Jonathan David Bachrach, New York City, for plaintiff Harfenes.

Sive, Paget & Riesel, P.C., New York City (Mark A. Chertok and Andrew J. Gershon, of counsel), for Sea Gate Association, Inc., defendant.

Robinson, Brog, Leinwand, Reich, Genovese & Gluck, P.C., pro se.

Robert Milner, for Robinson, Brog, Leinwand, Reich, Genovese & Gluck, P.C., defendant.

BEVERLY S. COHEN, Justice.

This is an action brought by plaintiffs for the recovery of damages under the provisions of Civil Rights Law s 70-a, which provides a cause of action for alleged victims of "SLAPP" suits (Strategic Lawsuits Against Public Participation).

In 1992, the Legislature enacted Civil Rights Law ss 70-a and 76-a to protect citizen activists from lawsuits brought against them in retaliation for their public advocacy. This legislation permits a defendant in an action "involving public petition and participation ... [to] maintain an action ... to recover damages ... from any person who commenced or continued such action." Civil Rights Law s 70-a(1).

Defendants originally moved to dismiss this case pursuant to CPLR 3211. The motion to dismiss was converted by this Court into a motion for summary judgment pursuant to CPLR 3212(b) and (h). Plaintiffs have filed two cross-motions. [FN1] Summary judgment in favor of the defendants is now granted, therefore plaintiffs' cross-motions will not be addressed.

[FN 1] The first cross-motion calls for sanctions against each opposing attorney in the amount of $10,000 on the grounds that: 1) the attorneys' briefs "fail to mention the leading cases," and 2) the attorneys have made "false statements knowing same to be false;" the second cross-motion requests that the law firm of Sive, Paget & Riesel be disqualified from representing Sea Gate Association on the grounds that members of the firm may be potential witnesses in this lawsuit.



I
Sea Gate is a private community of homes in the Coney Island section of Brooklyn, New York. Sea Gate Association, Inc. (the "Association") is a not-for-profit corporation, which serves as a homeowners' association for the Sea Gate community. In 1990, the Board of Directors of the Association (the "Board") sought permission from the New York Department of Environmental Conservation (the "DEC"), to place material along the community's shoreline in order to protect Sea Gate from the potentially harmful effects of "high wave energy" transferred from the Atlantic Ocean to the shoreline. [FN2]

[FN 2] The plaintiffs in the present suit have admitted they were unaware of the Board's attempt to obtain a permit from the DEC at the time the permit was sought.
Following the DEC's denial of permission for the shoreline stabilization program the Board authorized waste haulers to place a substantial amount of concrete, asphalt, brick and metal bars along the shoreline. The Board's failure to obtain a permit from the DEC prior to the placement of such material on Sea Gate's shoreline resulted in the DEC's imposing a substantial monetary fine upon the Association, as well as requiring the Board to institute the removal of the illegally placed material.
Several disgruntled members of the Association, including plaintiffs named herein, felt the Association should not bear the full cost of the DEC sanctions, and sought to uncover the names of the waste haulers by filing a lawsuit in Kings County in 1993 (the "Brody Suit").

Meanwhile, in December 1992 Sea Gate suffered a significant amount of damage from a severe winter storm. The Board decided to seek a loan from the United States Small Business Administration (the "SBA") for the purpose of repairing damage caused by the storm. After the SBA approved the Board's loan application, certain homeowners in the Sea Gate community [FN3] managed to delay the Board's receipt of the loan proceeds. [FN4]

[FN 3] Whether plaintiffs in this action were among this group of homeowners is in dispute; nevertheless, such a determination is irrelevant to the disposition of the instant motion.
[FN 4] It is in dispute whether the homeowners' primary motive for attempting to delay the Board's receipt of loan proceeds was the homeowners' concern over increased assessments, or their concern that the Board would misappropriate loan proceeds by paying DEC fines and legal fees connected with the illegal "dumping" controversy. Nevertheless, such a determination is irrelevant to the disposition of this motion. However, it is noteworthy that the SBA decided to proceed with funding the Association, after the Attorney General for the Eastern District of New York investigated the homeowners' complaints, and concluded that the Board would not use loan proceeds for improper purposes.

Plaintiffs claim the Association then filed a SLAPP suit (the "Wohlhender Suit") in 1993, designed to keep them from learning the identity of the waste haulers. The Wohlhender Suit sought to recover damages allegedly caused by disgruntled Sea Gate homeowners' opposition to the disbursement of the SBA loan. Plaintiffs herein were subsequently dropped as defendants from the Wohlhender Suit, which is the basis for this action.



II
Legislation adopted in Chapter 767 of the Laws of 1992 amended to the Civil Rights Law, ss 70-a and 76-a, which were specifically designed to protect those citizens who, usually before a government agency, publicly challenge applications by developers or other businesses for environmental and land use permits, leases, licenses or other approvals. The legislature recognized that such retaliatory lawsuits brought by developers and businesses, typically claiming damages in the millions of dollars and cloaked with accusations of libel, slander, interference with contract, and defamation, are rarely successful on the merits. However, they are likely to achieve their primary purpose of intimidating opponents and stifling public scrutiny and debate on matters of public policy.

Thus, in adopting the new anti-SLAPP law, the legislature has declared "it to be the policy of the state that the rights of citizens to participate freely in the public process must be safeguarded with great diligence. The laws of the state must provide the utmost protection for the free exercise of speech, petition and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern." (L.1992, ch. 767, s 1.)

The new legislation seeks to remedy the growing concern over SLAPP suits in several ways. First, the amendment allows "[a] defendant in an action involving public petition and participation ... [to] maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action." Civil Rights Law s 70-a(1). An "action involving public petition and participation" is defined by section 76-a(1)(a) as


an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.
Section 76-a(1)(b) then defines "public applicant or permittee" as

any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body.
Defendants in actions involving public petition and participation may recover costs and attorney's fees "upon a demonstration that the action ... was commenced or continued without a substantial basis in fact and law." Civil Rights Law s 70-a(1)(b). Furthermore, defendants may recover other compensatory damages "upon an additional demonstration that the action ... was commenced or continued for the sole purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights" (Civil Rights Law s 70-a[1][c] ) and punitive damages may be recovered as well if the action was commenced or continued with the sole purpose of harassing or intimidating.
At the same time, the legislature amended CPLR 3211 and 3212, allowing defendants in actions involving public petition and participation to obtain quick dismissal or summary judgment unless the plaintiff can demonstrate that "the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law." CPLR 3211(g), 3212(h). Prior to adoption of the new legislation, plaintiffs in actions involving public petition and participation needed only demonstrate a reasonable basis in fact or law to defeat a motion to dismiss or motion for summary judgment.

 

[Michael Wechsler]

Harfenes continued:

III
Plaintiffs herein however, do not have a cause of action under Civil Rights Law s 70-a because they were never defendants [FN5] in an "action involving public petition and participation" as defined by section 76-a(1)(a). In order for an alleged SLAPP suit to be an "action involving public petition and participation," such a suit must be brought by a public applicant or permittee and must be "materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission." Civil Rights Law s 76-a(1)(a) (emphasis added).

[FN 5] This court does not address whether plaintiffs herein lack standing as a result of having been dropped from the prior alleged SLAPP suit.
The Association's permit application to the DEC established it as a public applicant in that instance. Civil Rights Law s 76-a(1)(b). However, plaintiffs were unaware of the Association's application to the DEC at the time it was made, and never participated in the application process in any manner. The Brody Suit, which plaintiffs commenced three years after the Board was denied permission to place material along the shoreline, could not have been an effort to "report on, comment on, rule on, challenge or oppose" the Association's 1990 application. [FN6] Thus, with respect to the DEC application, the plaintiffs are missing an element necessary to receive protection under section 70-a. That is, they never made any effort with respect to defeating any application or permission.
[FN 6] If the Brody Suit had been an effort to enjoin the Association from allowing dumping in the absence of a permit, or had it been an effort to stop the DEC from granting permission to the Association to participate in shoreline stabilization, then perhaps it would have been the kind of activity intended to be protected by the statute.
However, plaintiffs argue that the new law, as a remedial statute, should be interpreted broadly to cover almost all types of retaliatory lawsuits. They contend that because there is a question of fact as to whether the Wohlhender Suit was in retaliation for plaintiffs' efforts to uncover the names of the illegal dumpers, they should have a cause of action under Civil Rights Law s 70-a.
This argument is without merit. The new anti-SLAPP law creates a new right of action for victims of SLAPP suits. It places new restrictions on the ability of public applicants to seek redress from the courts by requiring them to demonstrate their claims contain a substantial, rather than merely a reasonable, basis in fact or law. As such, the new anti-SLAPP law is in derogation of the common law. It is well established that statutes in derogation of the common law are to be construed narrowly. McKinney's Cons. Laws of N.Y., Book 1, Statutes, sec. 311; see also Transit Commission v. Long Island R. Co., 253 N.Y. 345, 171 N.E. 565; Hawkins v. County of Oneida, 267 A.D. 547, 47 N.Y.S.2d 574; Montalto v. Westchester Street Transportation Co., Inc., 102 A.D.2d 816, 476 N.Y.S.2d 586; Dollar Dry Dock Bank v. Piping Rock Builders, Inc., 181 A.D.2d 709, 581 N.Y.S.2d 361. Therefore, plaintiffs must directly challenge a license or permit application in order to establish a cause of action under Civil Rights Law s 70-a.

The plaintiffs' next argument is that the Association is a public applicant by reason of its application for a loan from the SBA. This argument is incorrect. A loan application is not an application for an "entitlement for use or permission to act from [a] government body." Civil Rights Law s 76-a(1)(b). On the contrary, a loan application is a request for money, which if granted is not an entitlement for use or permission to act, but rather an obligation that must be repaid with interest. Additionally, the plaintiffs allege the Wohlhender Suit was in retaliation for their attempt to forestall the Association's loan application; but at the same time the plaintiffs contend they never communicated with the SBA! This perplexing argument is not addressed by the Court, since the SBA application does not fall within the purview of the anti-SLAPP statute.

In order for the plaintiffs to defeat the defendants' motion for summary judgment there must be a material issue of fact in dispute. Although the parties clearly do not agree on several issues of fact, none of them is relevant to the question of whether the plaintiffs are entitled to relief under the Civil Rights Act. Accordingly, the defendants' motion for summary judgment is granted. The cross motions are denied.

 

[igoraf]

Michael,
do you expect us to read all that?

 

[Michael Wechsler]

Originally posted by samtha25:
In New York, there was legislation passed to inhibit SLAPP suits, after developers started using them against environmental and community groups opposed to projects. I don't recall the details, but it had to do with the party bringing the suit having to pay legal costs of the other side. It ahs been effective.

I'll be archiving the below cases and law in a special law section here... great point.

 

[Michael Wechsler]

Originally posted by igor@af:
Michael,
do you expect us to read all that?

Haha. I'm going to archive it and put it in the section of thelaw.com that has not yet been made available. It has taken a great deal of work but I think everyone here will be happy with the progress.

 

[Michael Wechsler]

I'll be posting the lower court case in the archive:

First Department

November 9, 1993


Appeal from the Supreme Court, New York County (Diane Lebedeff,
J.).
Page 64

The IAS Court properly rejected plaintiff's attempt to bring a
defamation action against the defendants, community opponents of
plaintiff's requested zoning permit for operation of a restaurant
and nightclub on the upper west side of Manhattan, in the guise
of an economic tort, as well as the plaintiff's attempt to cast
its defamation claim as tortious interference with business
relations or prima facie tort since it is well settled that a
plaintiff may not circumvent the one-year statute of limitations
applicable to defamation actions (CPLR 215 N.Y.C.P.L.R. [3]) by denominating
the action as one for intentional interference with economic
relations, prima facie tort, or injurious falsehood if, in fact,
the claim seeks redress for injury to reputation (Ramsay v
Bassett Hosp., 113 A.D.2d 149, 151-152, lv dismissed 67 N.Y.2d 608).
Additionally, a cause of action for prima facie tort or
intentional interference with prospective economic advantage does
not lie absent an allegation that the action complained of was
motivated solely by malice or to inflict injury by unlawful means
rather than by self-interest or other economic considerations
(Mandelblatt v Devon Stores, 132 A.D.2d 162, 168).

We note also that New York State public policy strongly
disfavors SLAPP suits designed to chill the exercise of a
citizen's right to petition the government or appropriate
administrative agency for redress of a perceived wrong (Sutton
Area Community v City of New York, NYLJ, Nov. 9, 1988, at 21,
col 4 [Nardelli, J.]; Civil Rights Law § 70-a Civ. Rights [L 1992, ch 767, §
2 (eff Jan. 1, 1993)]; see, Havoco of Am. v Hollobow,
702 F.2d 643, 650; Gorman Towers v Bogoslavsky, 626 F.2d 607, 614-615).

The IAS Court properly imposed as a sanction an award of
$10,000 in costs and attorneys' fees as against the plaintiff to
each of the individual defendants pursuant to CPLR 8303-a N.Y.C.P.L.R. (a).
The statute mandates an award in any tort action "commenced or
continued by a plaintiff * * * that is found, at any time during
the proceedings or upon judgment, to be frivolous by the court."
Here, the underlying retaliatory and harassing SLAPP action,
intended to stifle legitimate activity by community groups and
time-barred by the one-year statute of limitations applicable to
defamation actions, was, as the IAS Court found, brought in bad
faith and was without any reasonable basis in law or fact (CPLR
8303-a N.Y.C.P.L.R. [c]; Grasso v Mathew, 164 A.D.2d 476, lv dismissed
77 N.Y.2d 940, lv denied 78 N.Y.2d 855).

We have reviewed the plaintiff's remaining claims and find them
to be without merit.

Concur - Sullivan, J.P., Ellerin, Ross and Nardelli, JJ.