VIP Pet Grooming Studio, Inc. v. Sproule

2024 NY Slip Op 00205

VIP Pet Grooming Studio, Inc., respondent, v. Robert Sproule, et al., appellants.

No. 2021-04228, Index No. 612337/20

Supreme Court of New York, Second Department

January 17, 2024

Clare M. Sproule (Public Citizen Litigation Group, Wantagh, NY [Paul Alan Levy], of counsel), for appellants.

Leventhal, Mullaney & Blinkoff, LLP, Roslyn, NY (Steven G. Leventhal of counsel), for respondent.

Davis Wright Tremaine LLP, New York, NY (Laura R. Handman, James Rosenfeld, and Lindsey B. Cherner of counsel), for amici curiae Reporters Committee for Freedom of the Press, Gannett Co., Inc., Media Institute, MPA - The Association of Magazine Media, National Press Photographers Association, New York Public Radio, New York Times Company, Penguin Random House LLC, Radio Television Digital News Association, Society of Environmental Journalists, and Vox Media, LLC.

Hartman & Winnicki, P.C., Hicksville, NY (Richard L Ravin of counsel), for amici curiae Yelp, Inc., and Tripadvisor, LLC.

MARK C. DILLON, J.P. LINDA CHRISTOPHER BARRY E. WARHIT CARL J. LANDICINO, JJ.

OPINION & ORDER

DILLON, J.P.

APPEAL by the defendants, in an action, inter alia, to recover damages for defamation, from an order of the Supreme Court (Leonard D. Steinman, J.), entered May 24, 2021, in Nassau County. The order denied the defendants' motion pursuant to CPLR 3211(a)(7) and (g) to dismiss the complaint and for an award of attorneys' fees and costs.

In 1992, legislation was enacted in this State to protect citizens against the use of civil lawsuits commenced to discourage them from public participation (see L 1992, ch 767, § 1 [eff Jan. 1, 1993]). Such lawsuits are termed SLAPP suits, i.e., strategic lawsuits against public participation, and the statute meant to protect against these suits is termed anti-SLAPP (see Gottwald v Sebert, 40 N.Y.3d 240, 250). In 2020, the Legislature enacted amendments to expand the protection of the anti-SLAPP statute (see L 2020, ch 250 [eff Nov. 10, 2020]). The main question presented on this appeal, which is of first impression in the Appellate Division, Second Department, is whether these 2020 amendments apply retroactively to actions commenced before these amendments became effective, or prospectively, in connection with a motion to dismiss a complaint in lieu of an answer. We hold that the presumption of prospective application has not been overcome.

I. Relevant Facts

Sarah Sproule brought Ranger, a cocker spaniel puppy owned by Sarah and Robert Sproule (hereinafter together the Sproules), to VIP Pet Grooming Studio, Inc. (hereinafter VIP), a pet-grooming facility located in Wantagh. There, Ranger was bathed and then partially groomed before the groomer called Sarah asking her to pick up Ranger. According to VIP, Ranger was calm, healthy, and happy when Sarah picked him up. According to the Sproules, Ranger's breathing was labored and he was in distress when Sarah picked him up. The Sproules claim that they took Ranger to a veterinary emergency center where a veterinarian concluded that Ranger had aspirated water during the bathing process and was, essentially, drowning. Treatment efforts over the next several days proved unsuccessful, according to the Sproules, and, in consultation with a veterinarian, they decided to have Ranger put to sleep.

Robert allegedly posted on Yelp and Google public statements reading:

"I would strongly caution you against using this business. A grooming visit on March 4, 2020 ultimately ended with us having to put our 4-month old puppy to sleep two days later as a result of their negligence or incompetence. When we brought our happy healthy puppy in for a bath and cut, we specifically discussed our concerns regarding our puppy's hesitance to being bathed and the use of the clippers. We told the groomer that if there was any issue to stop and we would come get our puppy. Instead the groomer pushed our puppy through the process and only stopped and called us when it became very apparent that there was something physically wrong with our puppy. When we picked him up, he was clearly in distress, and we rushed him to the emergency vet. He had water in his lungs that the vet said could only have come from a dramatic physical accident at the groomer. Despite two days at the vet on a ventilator he continued to decline and we had to make the hard decision to let him go. We tried to discuss the situation with the groomer. They have taken no responsibility and in fact were abusive. They have threatened us financially and legally regarding telling our story. We will be pursuing legal recourse against this business when the courts reopen. You would be best finding another groomer."

The Sproules on the one side, and VIP on the other, commenced civil lawsuits against each other. The Sproules commenced an action against VIP in the District Court, Nassau County, on August 17, 2020, to recover damages and for an award of attorneys' fees, alleging that Ranger's injuries resulted from VIP's negligent conduct while Ranger was in VIP's care. VIP commenced this action against the Sproules in the Supreme Court, Nassau County, on November 2, 2020, to recover damages for defamation and for related injunctive relief. Eight days later, on November 10, 2020, certain amendments were enacted and became effective which expanded the scope of the State's anti-SLAPP statute, Civil Rights Law §§ 70-a and 76-a.

On January 11, 2021, the Sproules moved in this action pursuant to CPLR 3211(a)(7) and (g) to dismiss the complaint and for an award of attorneys' fees and costs. VIP opposed the motion. In an order entered May 24, 2021, the Supreme Court denied the motion. The Sproules appeal from the order.

II. Whether the 2020 Amendments to the Anti-SLAPP Statute Are Retroactive or Prospective

As enacted in 1992, the anti-SLAPP statute was "designed to protect citizens who participate in public affairs," namely, those relating to applications requiring government approval, against retaliatory lawsuits (Assembly Mem in Support, Bill Jacket, L 1992, ch 767 at 8). Civil Rights Law former § 76-a(1)(a) provided:

"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."

The statute defined an "action involving public petition and participation" narrowly to include only claims "brought by a public applicant or permittee," further 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" (id. former § 76-a[1][a], [b]). Claims covered by the statute required proof of actual malice by clear and convincing evidence (see id. former § 76-a[2]). The intent of the anti-SLAPP statute was to protect citizens from litigation arising out of their public petitioning and participation (see Waterways at Bay Pointe Homeowners Assn., Inc. v Waterways Dev. Corp., 132 A.D.3d 975, 979; Singh v Sukhram, 56 A.D.3d 187, 194). Defendants were entitled to interpose a counterclaim under the anti-SLAPP statute and, if successful, could potentially recover costs, attorneys' fees, and compensatory and punitive damages (see Civil Rights Law former § 70-a[1][a], [b], [c]).

A motion pursuant to CPLR 3211(a)(7) and (g) to dismiss, where the moving party demonstrates that the claim subject to the motion qualifies as 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" (id. former § 3211[g]; see Mable Assets, LLC v Rachmanov, 192 A.D.3d 998, 1000). In other words, CPLR former 3211(g) flipped the burden of proof on the ultimate dispositive merits; it provided that the party moving for dismissal need not establish a dispositive procedural or substantive defense on the merits of the action, as otherwise required under other provisions of CPLR 3211, but rather, need only establish that the true nature of the action is one within the scope of anti-SLAPP. The actual burden of proof as to the action's meritoriousness is thereupon shifted in the context of anti-SLAPP immediately to the plaintiff, which is unique. The same burden shifting applies to anti-SLAPP-related dismissal motions addressed to other forms of pleadings, such as cross-claims or counterclaims (see Civil Rights Law § 70-a[1]) and, for that matter, to anti-SLAPP-involved motions for summary judgment under CPLR 3212(h) (see Waterways at Bay Pointe Homeowners Assn., Inc. v Waterways Dev. Corp., 132 A.D.3d at 980; Southampton Day Camp Realty, LLC v Gormon, 118 A.D.3d 976, 978). Thus, in light of CPLR former 3211(g) and Civil Rights Law former § 76-a(2), a motion to dismiss a SLAPP suit alleging defamation was to be more readily granted than was a motion to dismiss other claims, to protect defendants from actions involving public petition and participation. The same may be said of other anti-SLAPP-inspired causes of action such as prima facie tort, abuse of process, and tortious interference with contractual relations (see Reeves v Associated Newspapers, Ltd., 217 A.D.3d 550, 552; 215 W. 84th St Owner LLC v Bailey, 217 A.D.3d 488; Mable Assets, LLC v Rachmanov, 192 A.D.3d at 1001).

The Legislature enacted the 2020 amendments to "extend the...