Isaly v. Garde

213 N.Y.S.3d 852

83 Misc.3d 379

Samuel D. ISALY, Plaintiff,

v.Damian GARDE, Delilah Burke, Defendants.

Supreme Court, New York County.

Decided on February 13, 2024

Carter, Ledyard & Milburn LLP (Alan Lewis, of counsel), New York, NY, for plaintiff

Morgan, Lewis & Bockius LLP (Kenneth Schacter, Jonathan Albano, and Andrew Buttaro, of counsel), New York, NY and Boston, MA, for defendant Garde

White & McSpedon, P.C. (Bruce Steinowitz and Christopher White, of counsel), New York, NY, for defendant Burke

James d’Auguste, J.

Plaintiff moves in Motion Seq. No 007 for an order vacating the stay and protective orders granted in this defamation action as part of the Court’s December 6, 2022 decision and order published at 2022 N.Y. Slip Op. 34108(U), 2022 WL 17475676 (the "December Decision").¹ Plaintiff also seeks, in Motion Seq. No. 008, leave to conduct discovery to oppose those branches of defendants’ motions to dismiss (Motion Seq. Nos. 003 and 004) that had been held in abeyance pending the Court of Appeals’ consideration of New York’s Anti-SLAPP Law, and to deny those motions to dismiss. For the reasons set forth below, plaintiff’s motion for discovery is denied, plaintiff’s motion to vacate the protective orders and stay is granted to the extent of lifting the stay and granting defendants’ motions to dismiss this action pursuant to the Anti-SLAPP Law, and the Court directs further proceedings to determine the award of defendants’ reasonable attorney’s fees and costs.²

Background and Previous Proceedings

This action, which has already been the subject of multiple reported decisions, arises from defendant Garde’s December 2017 article in STAT reporting the accounts of five women that plaintiff had "for years perpetuated a toxic culture of sexual harassment … routinely subjecting young female assistants to pornography in the workplace, lewd jokes, and pervasive sexist comments … kept a set of breast implants on his desk, palpating them like stress balls during idle conversation … and wantonly demeaned and verbally abused female employees," while managing a prominent hedge fund firm. (Amended Complaint, Ex. A., at 1). Plaintiff and his colleagues conceded during defendant’s Garde’s interview of them that "the firm had investigated claims against [plaintiff]," (but had "concluded none rose to the level of ‘a sexually egregious behavior,’ " without defining that standard) while plaintiff acknowledged having had breast implants in his office. (Amended Complaint, Ex. A., at 2; and Interview Transcript filed NYSCEF Doc. No. 16, at 19). In a final comment to defendant Garde prior to publication, one of plaintiff’s colleagues stated that "[i]f this article proceeds I hope that you will be fair and focus on the person responsible, not the entire firm." (Amended Complaint, Ex. A., at 2). On December 5, 2017, the article published under the headline "[b]iotech hedge fund titan Sam Isaly harassed, demeaned women for years, former employees say." (Amended Complaint, Ex. A, at 1).

Plaintiff subsequently commenced a series of actions litigated in state and federal court including this action — variously alleging defamation by defendant Garde and his employers for having written and published the article, and against defendant Burke, the sole female accuser of plaintiff willing to speak with Garde on the record. See, Isaly v. Boston Globe Media Partners, LLC, Dkt. No. 23-67-cv, 2023 WL 6439901, *1-2, 2023U.S. App. LEXIS 26124, *2-4 (2d Cir. Oct. 3, 2023) (affirming dismissal of federal action and discussing case history in state and federal courts).³ The Court initially dismissed this action by decision and order dated July 11, 2022 and published at 2022 N.Y. Slip Op. 32203(U), 2022 WL 2669242, about which plaintiff sought leave to reargue, which the Court granted in part by the Court’s December 6th decision to the extent of holding defen- dants’ Anti-SLAPP motions and a portion of defendant Burke’s motion to dismiss in abeyance pending the Court of Appeals’ action in Gottwald v. Sebert. 40 N.Y.3d 240, 197 N.Y.S.3d 694, 220 N.E.3d 621 (2023). The First Department affirmed the December Decision (as noted previously), and denied plaintiff leave to reargue or appeal by decision and order dated September 7, 2023, and published at 2023 N.Y. Slip Op. 72896(U). Plaintiff then sought leave to appeal from the Court of Appeals, which the Court of Appeals denied by decision and order dated January 16, 2024, and published at 2024 N.Y. Slip Op. 60632, 40 N.Y.3d 1088, 203 N.Y.S.3d 247, 226 N.E.3d 359.

Defendants do not oppose vacating the stay but instead request that the Court deny discovery and grant their applications for attorney’s fees and costs pursuant to the Anti-SLAPP Law. The Court addresses the parties’ arguments in turn.

The Anti-SLAPP Law as Amended by Chapter 250 Applies to the Continuation of this Action

Plaintiff incorrectly asserts that the First Department’s holding in Gottwald, which held that Chapter 250 did not apply to actions (like this one) commenced prior to its enactment, remains in force following the Court of Appeals’ decision reviewing it.

While the Court of Appeals was divided 5-1 in holding that Chapter 250 was not retroactive to the commencement of all potential SLAPP actions pending at the time of its enactment, the Court unanimously held 6-0 that the First Department erred in Gottwald and that "continuation of Gottwald’s suit beyond the effective date of the amendments entitles Sebert to recover damages," provided that defendant could establish an anti-SLAPP claim. Gottwald, at 259, 197 N.Y.S.3d 694, 220 N.E.3d 621. It is, as the Court of Appeals held in Gottwald, the continuation of this action following Chapter 250’s enactment, that raises the specter of Chapter 250 remedies. The Court has noted as much in this action once already. June Decision, at *13. "Plaintiff’s theory … is like the rabbit hole of Alice in Wonderland, a portal into a realm in which down is up and up is down," and neither the Court nor the parties are served by repeating arguments that are not only flatly contradicted by the plain text of decisions but have been expressly considered and rejected in this action. Brivik v. Murray, Dkt. No. 11-cv-2101, 2014 U.S. Dist. LEXIS 26784, *10 (M.D. Fla. Mar. 3, 2014). See also, D’Lil v. Best Western Encina Lodge & Suites, Dkt. No. cv 02-9506, 2010 WL 11655476, *11, 2010 U.S. Dist. LEXIS 163123, *31 (C.D. Cal. Apr. 13, 2010) (noting court’s concern that plaintiff’s repetition of rejected arguments "was not the first time [plaintiff’s counsel] had raised untenable arguments, wasting the Court’s time and Defendants’ money").

In re-casting his applicability argument in the instant motion, plaintiff relies upon the Appellate Division, Second Department’s recent holding in VIP Pet Grooming Studio, Inc. v. Sproule, 224 A.D.3d 78, 203 N.Y.S.3d 681 (2d Dept. Jan. 17, 2024), which held that a plaintiff’s complaint filed days before Chapter 250 took effect (and in which no subsequent action had been taken) was not subject to Chapter 250.⁴ VIP Pet Grooming Studio, at *4-5. See also, Burton v. Porcelain, 223 A.D.3d 775, 204 N.Y.S.3d 199 (2d Dept. 2024) (citing VIP Pet Grooming Studio in finding that Chapter 250 did not apply in motion to dismiss pending at the time of its enactment). Although plaintiff argues that VIP Pet Grooming Studio controls, plaintiff is incorrect. This action is immediately distinguishable in the sheer scale of plaintiff’s post-enactment litigation activity, and the Court of Appeals has stated that "[t]here is no retroactive effect when these provisions are applied, according to their terms, to the continuation of the action beyond the effective date of the amendments." Gottwald, at 258, 197 N.Y.S.3d 694, 220 N.E.3d 621. This particularly includes plaintiff’s August 2022 effort to again amend his complaint in Motion Seq. No. 005, long after Chapter 250 took effect.

[1, 2] At bottom, plaintiff invites the Court to disregard the Legislature and the Court of Appeals because plaintiff disagrees with them, which the Court cannot do. The Court "is bound to apply the law as it exists, and as interpreted by controlling … precedents," and cannot "usurp the role of the legislature or the Appellate Courts." Luongo v. Records Access Officer, 150 A.D.3d 13, 26, 51 N.Y.S.3d 46 (1st Dept. 2017); and People v. Alvarez-Hernandez, 2002 N.Y. Slip Op. 50493(U), *5, 2002 WL 31885498 (Westchester Co. Ct. 2002). The Court is "not free to disagree, to disregard in the guise of reinterpretation, or to speculate upon probabilities or personalities," and "must follow the decisions and interpretations of our highest court in spite of any individual predilections," plaintiff may have. United States v. Swift & Co., 189 F. Supp. 885, 901 (N.D. Ill. 1960). The Legislature and the Court of Appeals have spoken clearly that Chapter 250 applies to the continued litigation of existing cases after its enactment, and the Court will heed them.

Plaintiff’s Constitutional Objections to Anti-SLAPP Legislation are Misplaced

[3, 4] Plaintiff asserts that the Anti-SLAPP Law, as amended by Chapter 250, violates his state and federal constitutional rights of petition and jury trial. Once again, plaintiff is wrong. "[I]n amending its anti-SLAPP law to set a higher standard of fault for defamation claims involving private individuals … the New York legislature sought to protect an important substantive interest: the exercise of free speech about matters of public concern." Shannon Jankowski, SLAPP-ing Back: Recent Legal Challenges to the Application of State Anti-SLAPP Laws, American Bar Association (Mar. 16, 2022), at *8. "The news media—and those who share their stories with the news media—have faced an onslaught of retaliatory and meritless litigation in recent years," which is a pernicious harm that New York may, and has, sought to curb without offending the state or federal constitutions. Jankowski, at *9.

[5, 6] Federally, the...