New York

The New York anti-SLAPP statute protects defendants in legal actions involving public petition and participation. N.Y. Civ. Rights Law 70-a (McKinney 2011). An action involving public petition and participation is a public applicant or permittee’s action for damages “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.”

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 woman’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, 702 N.Y.S.2d 914 (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, 854 N.Y.S.2d 126 (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 2011). New York’s anti-SLAPP law is one of only a handful to not address the effect of a SLAPP defendant’s motion to dispose of the claim on discovery proceedings. The rule requires the court to grant the motion 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.

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 Law 76-a. The statute does not specify what standard a court will use to decide these motions or what evidence it will consider in making this determination.

The New York anti-SLAPP law does not allow for recovery of costs and attorney fees as part of the motion to dismiss. However, a successful defendant may file a SLAPPback suit against the plaintiff to recover costs, attorney fees and actual and punitive damages. N.Y. Civ. Rights Law 70-a. To receive attorney fees and costs, a SLAPPback plaintiff must show that the lawsuit lacked a substantial basis in law and could not be supported by a substantial argument for a modification of existing law. 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.” To recover punitive damages, a SLAPPback plaintiff must show that the plaintiff in the original action brought the claim solely to impair the SLAPPback plaintiff’s rights of free speech, association or petition.