The New York anti-SLAPP law is narrow; it only protects defendants in legal actions involving public petition and participation. N.Y. Civ. Rights § 70-a (McKinney 2019). An “action involving public petition and participation” is brought by a “public applicant or permittee” for damages and is “materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.” § 76-a. A “public applicant or permittee” is defined 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, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission.” § 76-b.
The state’s intermediate appellate court has construed these statutory definitions narrowly. For example, it reversed a trial court’s finding that a defendant could avail herself of the anti-SLAPP statute, holding that the defendant’s statements to the press about the plaintiff’s alleged misuse of funds were “not materially related to any efforts by her to report on, comment on, challenge, or oppose an application by the plaintiff for a permit, license, or other authorization from a public body.” Long Island Ass’n for AIDS Care v. Greene, 269 A.D.2d 430, 430 (N.Y. App. Div. 2000). Likewise, “merely advocating one’s agenda at public meetings, or initiating legal action, does not bring an individual within the ambit of an applicant or permittee” as defined in the statute. Hariri v. Amper, 51 A.D.3d 146, 151 (N.Y. App. Div. 2008).
The statute does not provide for a specific anti-SLAPP motion to dismiss. However, existing procedural rules state that a court considering a motion to dismiss a case involving public petition and participation must grant preference in hearing the motion. N.Y.C.P.L.R. 3211(g) (McKinney 2019).
New York’s law does not address whether the filing of an anti-SLAPP motion stays discovery.
The law requires the court to grant the motion to dismiss unless the plaintiff can show that the claim has a substantial basis in law or is supported by a substantial argument for a modification of existing law. Id. The plaintiff must also establish by clear and convincing evidence that the communication was made with knowledge of, or reckless disregard for, its falsity if such truth or falsity is material to the underlying claim. N.Y. Civ. Rights § 76-a. The statute does not specify what evidence the court will consider in deciding the motion.
The New York anti-SLAPP law does not allow for recovery of attorney’s fees or costs. However, a successful defendant may file a “SLAPPback” lawsuit against the plaintiff to recover attorney’s fees, costs, and actual and punitive damages. § 70-a. To receive attorney’s fees and costs, a “SLAPPback” plaintiff must show that the lawsuit lacked both a substantial basis in law and a substantial argument for a modification of existing law. Id. Actual damages require a showing that the plaintiff in the original action brought the claim “for the purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting the free exercise of petition, speech, or association rights.” Id. To recover punitive damages, a “SLAPPback” plaintiff must show that the plaintiff in the original action brought the claim solely to impair his or her rights of free speech, association or petition. Id.