New York has recently enacted a new anti-SLAPP (strategic lawsuits against public participation) statute, which provides additional remedies for the defense of frivolous lawsuits brought to deter the exercise of free speech and public petition rights. N.Y. Civil Right Law, §76-a(1)(a) now defines an “action involving public petition and participation” (i.e. a SLAPP action) broadly as “a claim based upon: (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”
The statute also alters the controlling standard and evidence subject to consideration on pre-answer motions to dismiss with regard to SLAPP actions, permitting the consideration of supporting and opposing affidavits on motions brought for failure to state a cause of action pursuant to CPLR §3211(a)(7), and shifting the burden on such motions so that a motion to dismiss in an action involving public petition and participation “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.” CPLR §3211(g)(1). In addition, the statute provides that all discovery is stayed pending the filing of a motion to dismiss in a case involving public petition or participation.
The statute heightens the standard for recovering damages in claims involving public petition and participation, requiring the plaintiff to show, in addition to all other necessary elements, that “by clear and convincing evidence . . . 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.” Civil Rights Law §76-a(2).
The statute also makes the award of costs and attorneys’ fees mandatory upon a demonstration that the action “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,” and provides that punitive damages may be recovered upon a determination that the action “was commenced or continued for the sole purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting the free...
