Opinion
Index No. CV-008128-22/KI
08-09-2022
John D. Balliet, Plaintiff, v. Rajesh Kottamasu, Defendant.
Joseph S. Hubicki, Law Offices of Joseph S. Hubicki, Counsel for Plaintiff. J. Remy Green, Cohen & Green PLLC, Counsel for Defendant.
Joseph S. Hubicki, Law Offices of Joseph S. Hubicki, Counsel for Plaintiff.
J. Remy Green, Cohen & Green PLLC, Counsel for Defendant.
SANDRA E. ROPER, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
NOTICE OF MOTION 1
AFFIRMATION IN SUPPORT & EXH. ANNEXED 2-3
NOTICE OF CROSS MOTION & OPPOSITION 4-5
AFFIRMATION IN SUPPORT & EXH. ANNEXED 6-7
DEFENDANT REPLY & EXH. ANNEXED 8-9
INTRODUCTION
This Honorable Court Decides and Orders after oral argument, upon submission of the foregoing papers, and for the reasons as set forth below: Defendant's Motion to Dismiss and for attorney fees pursuant to Anti-SLAPP Law, Civil Rights Law 70-a, 76-a and CPLR 3211 (g) is hereby DENIED; Plaintiff's Cross-Motion to Discontinue pursuant to CPLR 3217 is, with prejudice, GRANTED.
PROCEDURAL AND FACTUAL HISTORY
Plaintiff commenced this action upon filing on December 11, 2020 Statement of Claim against Defendant Kottamasu in Small Claims Court under Index Number 16010 SCK 2021 for defamation in the amount of $10,000.00 alleging "Defendant used both oral and written means to deliberately defame on behalf of 3rd party." By Court Order on April 22, 2022 this case was transferred from Small Claims Court to Kings County Civil Court under Index Number CV-008128/22. This Plaintiff commenced two other actions in Kings County Civil Court. The first filed in September 27, 2019 against 70 Lefferts LLC under Index Number CV-028734-19 for the return of security deposit in the amount of $18,000.00 with interest from September 30, 2018. The second case was filed December 5, 2020, by Statement of Claim against three other persons (roommates) under Index Number 16811-1 SCK 2020 in the amount of $5,000.00 alleging that those roommates have intentionally withheld his property after his moving out of the shared space.
The common thread with all these three suits concerns the last months of the Plaintiff as a roommate with the other four roommates "in a large, communal unit" as tenants of 70 Lefferts LLC, the Defendant in Index Number CV-028734/19 (affirmation of J. Remy Green, November 26, 2021, ¶ 10). Defendant alleges that Plaintiff violated a communal living agreement. However, this alleged agreement was not produced nor explained in an affidavit by someone with personal knowledge of this agreement. Defendant by counsel and again not by someone with personal knowledge, further alleged that Plaintiff was demanded to leave since he violated this agreement which forbade roommates from engaging in sexual harassment (id.). With the three other roommates, Defendant's significant other ("DSO") was an additional roommate, for a total of five roommates in this communal unit. It is undisputed by Plaintiff, as conceded at oral argument on April 22, 2022 that he did engage with flirtatious sexual inuendo with DSO. Defendant sent Gmail communication to the Gmail group of five roommates on August 22, 2016, reporting on discussions at a roommates' meeting held the night before in which Defendant accused Plaintiff of "sexual harassment and sexual abuse" against his DSO (see reply affirmation of J. Remy Green, exhibit 1). Defendant claimed that Plaintiff: commented on "liking" DSO's body; questioned why Defendant and DSO "did not invite a third sexual partner" into their bed; showed DSO "naked pictures of men on his phone; invited DSO to join him in a threesome because Defendant wasn't present at the time; and, told DSO that he could "hear things" when they were engaging in sexual relations; and was told by DSO that "the comments were inappropriate" (id.).
Plaintiff eventually moved out of the communal living space terminating roommate-tenant relationship with all defendants in all the commenced cases. Defendant Kottamasu moved pursuant to CPLR 325 and 602 (b) to consolidate all suits with the acquiescence of 70 Lefferts LLC, to dismiss defamation action pursuant to CPLR 3211 (g) and for attorney fees pursuant to Civil Rights Law 70-a. On November 30, 2021, Plaintiff, pro-se, filed a procedurally improper "Petition to Withdraw" his defamation suit originally captioned as Index Number SC-016010- 21. At oral argument held April 22, 2022, Plaintiff reiterated his filed Petition to Withdraw in order to discontinue the defamation suit and the other suits against his former roommates, whereas continuing to trial on his suit against 70 Lefferts LLC for the return of his security deposit. Although it is uncontroverted that the Plaintiff's defamation action was commenced after the expiration of the one year statute of limitations , Defendant Kottamasu objected to discontinuance of this instant case without awarding of attorney fees pursuant to Anti-SLAPP statute. Consequently, Court so ordered stipulation of discontinuance with prejudice of the other roomates' suits, denied consolidation and calendared 70 Lefferts LLC for trial, which was eventually settled by Court so ordered stipulation on July 7, 2022. This Court further ordered the transfer of Small Claims Court defamation suit captioned 16811-1 SCK-2020, upon the payment of the appropriate fee by Defendant, to Civil Court captioned in this instant index number to solely decide motion to dismiss and awarding of attorney fees pursuant to Anti-SLAPP law. Civil Court transfer was filed on May 4, 2022 along with Defendant's amended motion papers to reflect new caption and Civil Court jurisdiction. In compliance with ordered Briefing Schedule, Plaintiff retained counsel and filed Notice of Cross Motion to discontinue pursuant to CPLR 3217 (b) and in Opposition to Defendant's Motion on May 24, 2022, followed by Defendant's Reply filed June 15, 2022, upon which Motion and Cross-Motion were marked submitted.
Alleged defamatory statements were made by Defendant in 2016/2017 and defamation suit filed in 2020, which is beyond the one year statute of limitations (CPLR 215).
DISCUSSION
Sullivan v NY TIMES as Landmark SLAPP Suit
Notwithstanding that SCOTUS' landmark Sullivan was decided in 1964 predating the introduction of SLAPP suit into the legal lexicon, Sullivan is indeed for all intents and purposes in form and substance an archetypical SLAPP suit. SLAPP being the acronym for Strategic Lawsuit Against Public Participation brought with the intent to effectuate a chilling of the exercise of the First Amendment right to free speech on matters of public concern and interest. Defamation has been well established by common law as an intentional tort cause of action from the Kings Bench, which, in its much varied state to state codified versions, is most commonly the vehicle upon which SLAPPs are premised. "Generally speaking, slander is defamatory matter addressed to the ear while libel is defamatory matter addressed to the eye". New York along with some other state jurisdictions further categorizes defamation as either per se or per quod. Codification of defamation was exclusively within the states' ambit until Sullivan required First Amendment free speech protections for a state's defamation statute to pass Constitutional muster. SCOTUS recognized that Sullivan was indeed a SLAPP suit in essence if not in nomenclature, commenced to inflict litigation as a cudgel to so bludgeon, harass and intimidate the SLAPP Fourth Estate defendant, by inundating with costly, baseless litigious procedural machinations to effectively so restrain its exercise of free speech into capitulation and silence on matters of public interest or concern, as SCOTUS clearly opined that Civil Rights was. Although generally brought as de jure action in law, often times SLAPP's underpinning unwritten remedial intent in sum and substance is that of de facto action in equity to cease and desist the SLAPP defendant's speech and robust debate on the public issue of the moment. It is this impact on First Amendment unfettered speech without unconstitutional restraints thereto, that was sought to be redressed by Sullivan. SCOTUS reasoned that such free speech is fundamental to our exceptional experiment in democracy , which mandates heightened scrutiny on any restraint thereto. SLAPPs have been most commonly brought against the Fourth Estate to chill its speech by aggrieved similarly situated Public Official Plaintiff as LB Sullivan or Palinesque Public Figures. However, with the advent of ubiquitous social media platforms, there has emerged a Fifth Estate . Such that, even in the most remote areas of the globe, many have at their veritable fingertips the readily accessible capability to be deemed social media journalist in their own right publishing or blogging alleged objectionable defamation either to the ear or to the eye or both simultaneously with every click of the send button, even from the smallest of a computer device, to wit, a smart watch.
New York Times Co. v Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
SLAPP was first introduced into the legal lexicon by University of Denver Professors Penelope Canan and George W. Pring in the 1980s (see George W. Pring and Penelope Canan, SLAPPS: Getting Sued For Speaking Out, Temple University Press, Jan. 22, 1996 at 8-9).
Although New York refers to this SLAPP term, other states have instead used the term "Strategic Litigation Against Public Participation".
It is a bit of a misnomer, where it's well established law and unequivocally literally that First Amendment Free speech rights guarantees in the United States Constitution is free speech, peaceable assembly and petition of its citizens as against the U.S. government. However, over time its protection has been expanded against private natural and juridical persons.
2 NY PJI2d 3:23, at 196 (2009); see Prosser and Keeton, Torts §112, at 786 [5th ed]; Sack on Defamation §2.3, at 2-9 (3d ed).
" libel per se, where the defamatory statement appears on the face of the communication, and libel per quod, where no defamatory statement is present on the face of the communication but a defamatory import arises through reference to facts extrinsic to the communication " (Ava v NYP Holdings, Inc., 64 A.D.3d 407, 411-412, 885 N.Y.S.2d 247, 251 [1971], citing 2 NY PJI2d 3:23, at 197, 3:24, at 275; see also Hinsdale v Orange County Publs., 17 N.Y.2d 284, 217 N.E.2d 650, 270 N.Y.S.2d 592 [1966]; Cole Fischer Rogow, Inc. v Carl Ally, Inc., 29 A.D.2d 423, 426, 288 N.Y.S.2d 556 [1968, Stevens, J.,], affd 25 N.Y.2d 943, 252 N.E.2d 633, 305 N.Y.S.2d 154 [1969]). Per se, the alleged statement is so obviously injurious, harmful, on its face that extrinsic facts are unnecessary to prove damages and damages are presumed. Whereas, per quod requires Plaintiff to provide extrinsic facts to prove harm and damages are not presumed.
" Those who won our independence believed... that public discussion is a political duty; and that this should be a fundamental principle of the American governmen t" (New York Times Co. v Sullivan at 270).
Giuseppe Allegri and Roberto Ciccarelli, openDemocracy, What is the Fifth Estate?, https://www.opendemocracy.net/en/can-europe-make-it/what-is-fifth-estate/ (Feb. 27, 2014); see Gaurv Gupta, Neliti, Rise of Fifth Estate: Challenges and the Way Ahead, https://www.neliti.com/publications/327307/rise-of-fifth-estate-challenges-and-the-way-ahead at 128-136 (2020).
On February 21, 1956, Montgomery County indicted Martin Luther King, Jr. along with 89 fellow civil rights activists for boycotting the Jim Crow Blacks sit in the back segregated bus system for violating its anti-boycotting Alabama statute and most unsurprisingly, all found guilty. In an obviously retaliatory and harassing politically motivated prosecution to quash their exercise of the First Amendment free speech by the non-violent peaceable Civil Rights protests, assemblages and petitions for equal rights for Black citizens, shortly thereafter, Montgomery County once again indicted its leader, MLK. This time, for allegations of tax evasion in 1956 and 1958. This obviously blatant pattern of retaliatory political prosecution spurred the formation of the" Committee to Defend Martin Luther King and the Struggle for Freedom" spearheaded by celebrity entertainer Harry Belafonte and other racially diverse renowned celebrities, religious leaders, and civil rights activists. To support MLK's Civil Rights nonviolent protests and to publicly shame public official government actors for infliction of "unprecedented wave of terror" , this Committee published on Tuesday, March 29, 1960, the alleged offending New York Times Advertisement. " Heed their Rising Voices" is the sine qua non of Sullivan. Montgomery County Public Service Commissioner LB Sullivan brought state court (SLAPP) suit against New York Times for defamation. LB Sullivan alleged this advertisement was libelous against the county police and therefore, by extrapolation, libelous against him individually as its supervising public official, notwithstanding that he was not named in the Advertisement . He argued, which was adopted as a matter of law by the Alabama courts, since he oversaw the Montgomery County Police Department, all libelous defamatory and false statements against the police department of harassing and terrorizing MLK and Black Alabama residents were also, by implication, defamatory libelous statements against LB Sullivan individually in his capacity as its supervising public official. The Alabama trial court charged the jury accordingly resulting in finding that the New York Times Advertisement was libel per se and verdict awarded money damages to LB Sullivan. After verdict, New York Times sought certiorari to challenge the Constitutionality of Alabama's defamation statute. SCOTUS granted certiorari and rendered decision in favor of New York Times and reversed Alabama's judgment for LB Sullivan. SCOTUS Justice Brennan writing for a unanimous court, struck down as unconstitutional Alabama's defamation statute, as it imposed undue restraint on the First Amendment in violation of the Fourteenth Amendment of The Constitution. Sullivan ushered in the Landmark Libel Law standard requiring First Amendment free speech protections in defamation suits brought by public officials particularly as against the Fourth Estate (SLAPP) defendants. Sullivan 's Libel Law Doctrine held that state statute shall require a showing that an aggrieved public official may only be defamed by the actual malice standard by a showing with clear and convincing evidence that (SLAPP) defendant spoke with knowledge of the statement's falsity or with reckless disregard of the truth. A very high bar. Such that, (SLAPP) defendant's mere journalistic negligent innocent error in truthfulness without malicious intent is insufficient in defamation action commenced by a (SLAPP) public official plaintiff acting in his or its official capacity. SCOTUS reasoned that constitutionally protected free speech and free press is much too fundamental to our constitutional form of government to foster and not stifle vigorous and robust debate on matters of public concern and interest, even if critical of government, public affairs or public officials. Notwithstanding SCOTUS Justice Clarence Thomas' escalating challenge , Sullivan remains controlling First Amendment Libel Law stare decisis and its principles are codified in many states, including New York, somewhat insulating those states from its possible overturn by SCOTUS in the future. Over time, Sullivan's principles have been further expanded beyond government actor public official in subsequent SCOTUS decisions to include public figures and limited public figures, significantly broadening the class of SLAPP plaintiff.
Committee To Defend Martin Luther King and The Struggle For Freedom In The South, Heed Their Rising Voices, NY Times, Mar. 29, 1960, available at Documented Rights: Advertisement, "Heed Their Rising Voices," https://www.archives.gov/exhibits/documented-rights/exhibit/section4/detail/heed-rising-voices-transcript.html.
Id.
" The publication here was not a 'commercial' advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern" (New York Times Co. v Sullivan, 376 U.S. 254, 266-267, 84 S.Ct. 710, 718-719 [1964], citing see N.A.A.C.P. v Button, 371 U.S. 415, 435 [1963]) . " That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold " (id., citing Smith v California, 361 U.S. 147, 150 [1959]; cf. Bantam Books, Inc. v Sullivan, 372 U.S. 58, 64 n 6 [1963]) . "Any other conclusion would discourage newspapers from carrying 'editorial advertisements' of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities - who wish to exercise their freedom of speech even though they are not members of the press" (id., citing Schneider v State of New Jersey, 308 U.S. 147, 164 [1939] ; cf Lovell v Griffin, 303 U.S. 444, 452 [1938]) . "The effect would be to shackle the First Amendment in its attempt to secure 'the widest possible dissemination of information from diverse and antagonistic sources'" (id., citing Associated Press v United States, 326 U.S. 1, 20 [1945]). "To avoid placing such a handicap upon the freedoms of expression, we hold that if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement " (id.).
Of note, there were no specific names of any Alabama public officials included in the Advertisement. Alabama defamation law required the public official acting in his official capacity under color of law must formally demand public retraction of alleged defamatory libelous speech as condition precedent for punitive damages' relief. Although the New York Times did publish retraction as to the Alabama governor because it did not desire to include the entire State of Alabama and its citizens as to objectionable conduct, but rather sought to expressly specify Montgomery County, Alabama. However, to comply with condition precedent LB Sullivan demanded retraction, which New York Times responded formally questioning under what theory to issue retraction when he was never named in the Advertisement.
"It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not "My Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time "ring" the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four; and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault" (New York Times Co. v Sullivan, 376 U.S. at 258-259). "Speech is free but lies you have to pay for" an axiom often touted by SLAPP plaintiffs. Although not as captivating to the juror, it must be clarified accordingly" lies made with 'actual malice' you have to pay for." (The Washington Post, Opinion: At last, Alex Jones will pay for his desipicable lies, [Aug. 5, 2022], https://www.washingtonpost.com/opinions/2022/08/05/alex-jones-defamation-payout-finally/; see Jones v Lewis, 2019 Tex App LEXIS 9016, *2, 2019 WL 5090500 [Ct App Tex 2019]; Jones v Heslin, 2020 Tex App LEXIS 6498, *2, 2020 WL 4742834 [Ct App Tex 2020]).
Four Black Alabama Ministers mentioned as supporters in the Advertisement, Ralph Abernathy, S.S. Seay, Sr., Fred Shuttlesworth, and Joseph Lowery, were named codefendants in LB Sullivan's SLAPP suit.
" Although actual malice is subjective, a court typically will infer actual malice from objective facts" (Sheindlin v Brady, 2022 U.S. Dist LEXIS 65310, *29-30, 2022 WL 1063678 [2022], citing Celle v Filipinno Reporter, 209 F.3d 163, 183 [2000]) . " These facts should provide evidence of negligence, motive and intent such that an accumulation of the evidence and appropriate inferences supports the existence of actual malice" (id.). "The Second Circuit has stated that '[e]vidence of ill will combined with other circumstantial evidence indicating that the defendant acted with reckless disregard of the truth or falsity of a defamatory statement may also support a finding of actual malice " (id.). But evidence of ill will alone does not suffice to establish actual malice. (id.). "[A] court ruling on a motion for summary judgment on actual malice 'must be guided by the New York Times "clear and convincing" evidentiary standard in determining whether a genuine issue of actual malice exists-that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity'" (Palin v New York Times Co., 482 F.Supp.3d 208, 214 [SDNY 2020], quoting Anderson v Liberty Lobby, 477 U.S. 242, 257, 106 S C t 2505, 91 L.Ed.2d 202 [1986], modified, 510 F.Supp.3d 21 [SDNY 2020]).
n 14, supra.
Justice Thomas in concurring in denial of certiorari opined:" New York Times and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law" (McKee v Cosby, 139 S.Ct. 675, 676, 203 L.Ed.2d 247, 248 [2019]). Further, Justice Gorsuch joined Thomas in his more recent dissent as he opined: "Berisha now asks this Court to reconsider the 'actual malice' requirement as it applies to public figures.As I explained recently, we should" (Berisha v Lawson, 141 S.Ct. 2424, 2424-2425 [2021], citing McKee v Cosby, 139 S.Ct. 675 at 676). Of noteworthy special emphasis, Thomas' foreboding "we should." Ergo signaling a penchant for reversal of 60 years of First Amendment precedent which may likewise indeed go by way of recently overturned 50 year Roe v Wade precedent, given the present SCOTUS' majority conservative court's emboldened judicial activist proclivities to discard historical landmark stare decisis (see Dobbs v Jackson Women's Health Org., 142 S.Ct. 2228, 2240, 213 L.Ed.2d 545, 557 [2022]).
"We consider and would hold that a "public figure" who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers" (Curtis Pub. Co. v Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991-1992, 18 L.Ed.2d 1094, 1111 [1967], citing cf. Sulzberger, Responsibility and Freedom, in Nelson, Freedom of the Press from Hamilton to the Warren Court 409 at 412).
SCOTUS further refined the public figure definition in Gertz, establishing two classifications of public figures (Gertz v Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 [1974]). "The first class consists of those who "occupy positions of such pervasive power that they are deemed public figures for all purposes" (id. at 345, 94 S.Ct. at 3009). "In order for a person to be classed as a public figure for all purposes, there must be 'clear evidence of general fame or notoriety in the community and pervasive involvement in the affairs of society.'" (id. at 352, 94 S.Ct. at 3013). The second class is considered limited public figures with respect to speech in a specific area of public interest by persons who "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved" (id. at 345, 94 S.Ct. at 3009).
NEW YORK ANTI-SLAPP STATUTE
In 1964 as SLAPP Defendant, the New York Times did not have the benefit of First Amendment protection by an Alabama Anti-SLAPP statute. Designed to inoculate SLAPP defendant's free speech in the robust discourse and debate on matters of public concern and public interest from the costly time and labor intensive litigation to defend overburdensome meritless SLAPP suits, Anti-SLAPP laws emerged in the early 1990s. With the exclusion of Sullivan 's state of Alabama, many states have legislatively codified Anti-SLAPP laws to further bolster First Amendment free speech procedural litigation protective procedures to enforce Sullivan' s principles and deter filing of meritless SLAPPs. Precursor Anti-SLAPP laws including that of New York's were considered much too narrow and limited in scope to truly accomplish the intended legislative purpose. On November 10, 2020, New York Times and similarly situated class of the Fourth Estate and Fifth Estate significantly benefited from the much strengthened, immediately effective, and held retroactive amended expansion of New York's Anti-SLAPP Statute. Other states followed suit by adopting a model Anti-SLAPP law which largely mirrored New York's amended Anti-SLAPP law, which was drafted by The Uniform Law Commission, The Uniform Public Expression Protection Act (UPEPA). The overarching legislative intent for these significantly strengthened amended expansions of these Anti-SLAPP laws is a shifting of the costly consequences from defendant to plaintiff with the intent to dissuade and deter meritless SLAPPs from being brought in the first instance.
New York's initial Anti-SLAPP law enacted August 3, 1992 and effective January 1, 1993, was limited to cases brought to redress government body's actions as to public permits, zoning changes and other entitlements, even though the legislative purpose was stated as: "The laws of the state must provide the utmost protection for the free exercise of speech, petition and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern"(1992 NY ALS 767, 1992 NY LAWS 767, 1992 NY AN 4299, 1992 NY ALS 767, 1992 NY LAWS 767, 1992 NY AN 4299).
2019 NY Senate Bill S52A (Jan. 9, 2019). "It is clear that § 76-a is a remedial statute that should be given retroactive effect. The Legislature conveyed a sense of urgency by directing that the amendment was to "take effect immediately" (Palin v NY Times Co., 510 F.Supp.3d 21, 27, 2020; see Robbins v 315 W. 103 Enters. LLC, 164 NYS 3d 823 [2022]).
Washington State became the first to adopt UPEPA in May, 2021, after its previous Anti-SLAPP law was struck down as unconstitutional as violative of the right to trial by jury (UPEPA, 2021 Wash Legis Serv, ch. 259, § 2 (2) (c)).
New York's Anti-SLAPP legislative purpose remained unchanged as amendments in language were made to Civil Rights 70-a, Civil Rights 76-a, CPLR 3211 (g), and CPLR 3212 (h). Although The Fourth Estate is the primary beneficiary of the amended Anti-SLAPP law it is not the exclusive beneficiary thereof. Rather, the amended language was very deliberate to broaden the class of Anti-SLAPP First Amendment defendant protectees by stating "any communication" even by a non-press, non-media, non-journalist, non-traditional communicator in "a place open to the public or public forum" evidencing inclusion of the Fifth Estate in the ubiquitous social media platforms, as well as adding "any other lawful conduct" that may take many different forms beyond the mere traditional forms of exercising of the Constitutional right of free speech communicated to the "eye or the ear" . Certainly, with ever evolving technology being made readily available to the masses, there may be quite creative unimagined manners of expression by "any other lawful conduct" to engage in robust debate on matters of public interest. These Amendments further mandate that "public interest" is to be so "construed broadly" solely to the exclusion of "purely private matters", which is indeed a very low bar. Moreover, the shifting cost consequences from defendant to plaintiff is indeed a crux of the Anti-SLAPP deterrent procedural remedial safeguards. Such that, where dismissal is granted Civil Rights Law 70-a explicitly statutorily mandates, precluding judicial discretion , that attorney fees and costs "shall" be paid by SLAPP plaintiff to the SLAPP defendant. Procedurally, defendant's filing of Anti-SLAPP motion to dismiss triggers statutorily imposed automatic stay until court's ruling, circumventing any further costly full-scale discovery, pursuant to 3211 (g) (3). However, court may exclusively order "specified discovery" solely to address issues raised in the motion to dismiss pursuant to CPLR 3211 (g) (3), signaling to potential SLAPP plaintiff the heightened pleading standard to withstand Anti-SLAPP pre-discovery dismissal. Although not usually procedurally admitted in a motion to dismiss, admissible affidavits and documentary evidence are allowable pursuant to CPLR 3211 (a) and 3211 (g) (2) (3). Upon SLAPP defendant demonstrating suit involves "public petition and participation" pursuant to 3211 (g) (1) and Civil Rights Law 70-a, burden shifts to plaintiff to prove its SLAPP "has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law." SLAPP plaintiff's failure to meet its burden shall result in SLAPP's dismissal. Consistent with SCOTUS, New York Courts' expeditious resolution is hallmark of Anti-SLAPP law pursuant to CPLR 3211 (g) (1) which requires, "court shall grant preference in the hearing of such motion." Anti-SLAPP motion to dismiss may be converted sua sponte or by anti-SLAPP defendant as motion for summary judgment where sufficient facts set forth in pleadings, garnered from previous discovery exchanged or provided in admissible affidavits and documentary evidence pursuant to CPLR 3212 (h) which contains the very same CPLR 3211 (g) (1) prioritization language, "court shall grant preference in the hearing of such motion."
n 21, supra.
2020 NY Assembly Bill 5991 (Nov. 10, 2020).
"These recent amendments by the Legislature have turned the original purpose of the Anti-SLAPP law upside down. Here, one of the largest newspapers in the world since Abraham Lincoln was engaged in the private practice of law, is claiming protections from an upstart competitor armed with a cell phone and a web site. Not only does the amended Anti-SLAPP law grant protection to a Goliath against a David, but 16 years after the SLAPP law was enacted, a newspaper had never qualified for SLAPP protection for its written article " (Project Veritas v NY Times Co., 2021 NY Misc. LEXIS 2264, *16, 2021 NY Slip Op 31908 [U] [Westchester County 2021], citing Cholowsky v Civiletti, 16 Misc.3d 1138 [A], 851 N.Y.S.2d 57, 2007 NY Slip Op 51742 [U] [Sup Ct, Suffolk County 2007]; aff'd 69 A.D.3d 110, 887 N.Y.S.2d 592 [2d Dept 2009]).
n 6, supra.
However, federal courts have generally applied substantive state law but federal procedure law, resulting in different outcomes in application of New York anti-SLAPP law such that although applying its actual malice standard as substantive, whereas denying its mandated costs, attorney fees and punitive damages as procedural as well as denying application of its motions to dismiss or for summary judgment as procedural (see NOVAGOLD Res., Inc. v J Capital Rsch. USA LLC, 2022 WL 900604 [EDNY 2022]; Shahidullah v Shankar, 2022 WL 286935 [D. Maryland 2022]; Lindberg v DOW Jones & Co., 2021 WL 3605621 [SDNY 2021]; Sweigert, 2021 WL 1578097 [SDNY 2021]; Coleman v Grand, 523 F.Supp.3d 244, 258 [EDNY 2021]; Palin, 510 F.Supp.3d at 26; see Brady v NYP Holdings, Inc., 2022 WL 992631 [SDNY 2022]; Carroll v Trump, 2022 WL 748128 [SDNY Mar. 11, 2022); Kesner v Buhl, 2022 WL 718840 [SDNY 2022]; Nat'l Acad. of Television Arts & Scis., Inc. v Multimedia Sys. Design, Inc., 2021 WL 3271829 [SDNY July 30, 2021]; but see Harris v American Accounting Association, 2021 WL 5505515, at *13-14 [NDNY 2021] [awarding attorneys' fees under statute]; see Friedman v Bloomberg, L.P., 2022 WL 1004578, at *1 [D Conn Apr. 4, 2022]; Carroll, 2022 WL 748128, at *7; Nat'l Acad. of Television Arts & Scis., Inc., 2021 WL 3271829 [SDNY 2021]; Sweigert, 2021 WL 1578097, at *2).
"The importance of summary adjudication in the context of libel litigation cannot be overemphasized. Libel actions are notoriously expensive to defend and, indeed, '[the] threat of being put to the defense of a lawsuit may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself'" (Immuno, AG. V Moor-Jankowski, 145 A.D.2d 114, 127, 537 N.Y.S.2d 129, 137, 1989 NY A.D. LEXIS 310, *22-23, 16 Media L. Rep. 1145 [1st Dept 1989], citing Washington Post Co. v Koegh, 365 F.2d 965, 968 [J. Skelly Wright, J.], cert denied 385 U.S. 1011).
In a case of first impression which garnered much public interest, Palin held inter alia that the significantly expanded New York Amended Anti-SLAPP law is to be applied retroactively pursuant to its legislative intent premised upon its purpose and history. Consequently, this time, the New York Times benefited not only from stare decisis of Sullivan but also the codification of its actual malice principles in amended New York Anti-SLAPP law passed in the midst of the New York Times' defense. However, New York expanded the actual malice standard beyond SCOTUS' public official, public figure and limited public figure to also include private figure to establish "by clear and convincing evidence that 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" (NY CLS Civ R § 76-a). In a bit of a highly unusual procedural posture, in the midst of jury deliberation, presiding justice publicly announced that he had decided regardless of jury's verdict that he would grant directed verdict to the New York Times, causing quite a public stir as his public pronouncement may have influenced the non-sequestered jury's verdict, which similarly rendered judgment in favor of the New York Times. Court appeared quite flabbergasted that Palin's SLAPP suit was a pretextual direct attack on Sullivan. To attempt the overturn of this landmark long standing sixty-year public official/figure actual malice libel law stare decisis by this New York District Court of lower jurisdiction. Alternatively, Palin further sought to seriously weaken Sullivan to set precedent to establish distinguishable fact-based carve outs. Palin's arguments were quite ambitious with such hubris to so cavalierly discard this most well-entrenched beacon of First Amendment free speech stare decisis. Palin SLAPP suit was obviously brought to not merely redress alleged libel against her that was already publicly acknowledged as non-malicious journalistic negligent error and had already been corrected by the New York Times, but rather to provide an opportunity to SCOTUS' seemingly newly emerging judicial activism to up-end decades of well-established libel law in desecration of Stare decisis et non quieta movere. Notwithstanding Palin's retroactivity holding and the New York Times' expenditures of five years of protracted eminently costly litigious procedural machinations in its defense, it may have indeed been too late to inure the full benefit of the Anti-SLAPP's cost recoupment benefit factor .
The previous version of Anti-SLAPP law first codified in 1992 was quite narrow in its free speech protections to only include suits by plaintiffs seeking various entitlements from a government agency, such as public permits or waivers or zoning changes.
"What plaintiff is really asking, then, is for this Court either to 'overrule' New York Times v Sullivan or else to distinguish that case on the facts and refuse to apply the actual malice rule here. To the extent those are, in fact, different requests, the Court declines them both" (Palin v New York Times Co., 482 F.Supp.3d 208, 214-215 [SDNY 2020]).
"Perhaps recognizing that this Court is not free to disregard controlling precedent even if it were so inclined (which in this case it distinctly is not), plaintiff offers what she calls an alternative argument: that 'the actual malice rule arose from distinguishable facts and should not be applied' here. More precisely, plaintiff's argument is that the actual malice rule, which was first articulated more than half a century ago in the days before the Internet and social media, has run its course and should no longer govern our contemporary media landscape. Binding precedent does not, however, come with an expiration date. To the extent plaintiff believes the actual malice requirement ought to be abolished, she could make that argument to the appropriate court - the Supreme Court. Until then, public figures, like plaintiff, must establish actual malice before collecting damages for defamation. Plaintiff's motion for partial summary is therefore denied " (id.).
"While plaintiff acknowledges that the actual malice rule of New York Times and its progeny is well-established, she fundamentally misunderstands the doctrine of stare decisis that makes that rule binding on this Court. Plaintiff alludes to the 'factors considered in deciding whether to overrule precedent" and notes in particular that "constitutional questions are less susceptible to stare decisis'" (Palin, citing Janus v American Fed'n of State, County, and Mun. Emps. Council 31, 138 S.Ct. 2448, 201 L.Ed.2d 924 [2018]; Kimble v Marvel Entm't, LLC, 576 U.S. 446, 456, 135 S.Ct. 2401, 192 L.Ed.2d 463 [2015]). "But those factors, and those cases, pertain to horizontal stare decisis, whereby a court determines whether its own prior precedent remain binding on that court" (id. citing Dodge v Cty. of Orange, 282 F.Supp.2d 41, 79 [SDNY 2003]). "By contrast, what lies before this Court is vertical stare decisis, whereby a higher court ruling binds a lower court" (id.). "[V]ertical stare decisis is absolute, as it must be in a hierarchical system with one supreme Court" (id., citing Ramos v Louisiana, 140 S.Ct. 1390, 1416 n 5, 206 L.Ed.2d 583 [2020] [Kavanaugh, J., concurring in part] [quoting U.S. Const, art III, §1]). "In other words, this Court has 'a constitutional obligation' to follow the Supreme Court's precedent 'unless and until it is overruled by [the Supreme Court] '" (id.).
n 18, supra.
However, to right de jure as well as defacto human rights wrongs, such as Abolition of Slavery, Abolition of Jim Crow, Voting Rights to Women and Blacks, disturbance of precedent is necessary to the survival of this very tenuous experiment in democracy that we call The United States of America. Of note, Plessy v Ferguson stare decisis Jim Crow separate but unequal stood for 58 years before overturned by Brown v Board of Education (Plessy v Ferguson, 163 U.S. 537, 540, 16 S.Ct. 1138, 1139 [1896]; Brown v Bd. of Educ., 347 U.S. 483, 486, 74 S.Ct. 686, 687, 98 L.Ed. 873, 876 [1954]).
n 22, supra.
n 28, supra.
Notwithstanding that it has been well established that a matter of public concern is indeed so broadly construed to be a low bar to clear to withstand challenge as a purely private matter for Anti-SLAPP motion to dismiss, in this case at bar, the dispositive issue may be that of what constitutes "public forum". The alleged Anti-SLAPP offending communication must have been made "in a place open to the public or a public forum in connection with an issue of public interest" (NY CLS Civ R § 76-a [a] [1]). Alleged communications of sexual harassment are absolutely matters of public concern and interest. However, "[s]tatements falling 'into the realm of mere gossip and prurient interest' are not matters of public concern nor are 'publications directed only to a limited, private audience'" (Aristocrat Plastic Surgery, P.C. v Silva, 206 A.D.3d 26, 169 NYS 3d 272 [1st Dept 2022], citing Huggins v Moore, 94 N.Y.2d 296, 302-303, 726 N.E.2d 456, 704 N.Y.S.2d 904 [1999]). It is uncontroverted that Plaintiff made flirtatious sexually tinged comments about his Roommate Defendant's significant other (DSO). Although morally and ethically reprehensible, statements of alleged sexual flirtation with a roommate's significant other constitutes gossip and are not issues of public interest nor public concern, but rather purely private matter under the circumstances of this instant matter. Indeed, statements of alleged sexual misconduct are considered non-exclusive gender based discrimination and are cognizable matters of public interest and concern. However, Defendant's argument that "discussions of sexual misconduct" is in the public interest pursuant to Oregon Anti-SLAPP law in and of itself is not dispositive nor compelling. The alleged offending No.MeToo sexual harassment statements against an Oregon attorney allegedly perpetrated against his co-worker was published in a news media website , undoubtedly a public forum pursuant to New York's Anti-SLAPP Civil Rights Law §76-a. Whereas, in this case at bar, the alleged offending statements were made within the confines of the private apartment or living space shared by Plaintiff, Defendant, Defendant's significant other and three other roommates, which does not constitute a place open to the public or a public forum, even if statements were spoken or written in a Gmail email group consisting of five roommates, clearly a private limited audience. Historically, from the medieval times of the Kings Bench which was continued by the fledgling United States, the town crier's attention grabbing ring of his bell followed by 'hear ye hear ye chant', announced matters of public interest and concern including government pronouncements of new taxes, judicial hangings, extra-judicial mob lynchings of Blacks and Native Americans, good and bad news of the moment in the public square. An indispensable public service for the mostly illiterate masses at the time, delivered in the public forum. A precursor of our modern day "communication in a place open to the public or a public forum in connection with an issue of public interest", has evolved to include the press, broadcast media, virtual media, books, social media, Yelp, Facebook, Twitter, ZocDoc, TikTok and still the old fashioned mainstay, the modern day town crier protester making her impassioned pronouncements with her bullhorn on the public issue of concern and interest of the moment in a physical public square (see NY CLS Civ R § 76-a). In a case of first impression pursuant to New York's amended Anti-SLAPP law, the First Department Appellate Division held that social media, to wit, Yelp, is a public forum (Aristocrat Plastic Surgery, P.C. v Silva). And, rejected out of hand the argument that Anti-SLAPP plaintiff's medical services rendered to Anti-SLAPP defendant are purely private matters and not protected by Anti-SLAPP Law. Although Court did not explicitly define public forum, the cases cited are consistent with what constitutes a public forum. Here, there is no public forum nor place open to the public. Rather these statements were made by Defendant in this instant matter within the confines of an apartment and living space with fellow roommates, for a total of five persons. Neither does Civil Rights Law §76-a (a)(2) resuscitate Defendant's argument for Anti-SLAPP relief in this matter, where it is here reasoned, pursuant to legislative history and purpose, this is not the setting nor scenario that was intended to be redressed by Anti-SLAPP Law in terms of the unfettered First Amendment Free speech protections, even with its most broad expansive breadth . If so, any family revelations confessed solely around the Family Thanksgiving Table and repeated in the Family's exclusive group text, group chat or group email, decidedly not public forums, may potentially fall within the ambit of Anti-SLAPP. Of which, this is not the legislative intent of Anti-SLAPP Law. However, contrast must be made where family member airs unflattering defamatory skeletons in obvious public forum, to wit, non-fiction biography, of these very same type revelatory confessions of public concern and interest gathered at the Family Thanksgiving Table which would indeed render these family skeletons no longer in a purely private forum but rather in a public forum, and therefore within ambit of Anti-SLAPP Law (see Carey v Carey, 74 Misc.3d 1214 [A], 2022 NY Slip Op 50124 [U], *5 [Sup Ct, NY County 2022]).
"When determining whether content is within 'the sphere of legitimate public concern, allegedly defamatory statements can only be viewed in the context of the writing as a whole' and '[c]ourts must examine [the] content, form, and context' of the statements" (Aristocrat Plastic v Silva at 6, citing Huggins v Moore, 94 N.Y.2d 296, 302 [Ct App 1999]). "Statements falling 'into the realm of mere gossip and prurient interest' are not matters of public concern nor are 'publications directed only to a limited, private audience' (id.). "Notably, under a different context, this Department has held that business reviews are of the public interest" (id., citing Twenty-Five E. 40th St. Rest. Corp. v Forbes, Inc., 37 A.D .2d 546, 546, 322 N.Y.S.2d 408 [1st Dept 1971] ["The review of the restaurant was of interest to the public who might patronize it and was privileged under the First Amendment"], affd 30 N.Y.2d 595, 282 N.E.2d 118, 331 N.Y.S.2d 29 [1972]). "Further, in one non-SLAPP case arising from an online review of a physician, a federal district court found that New York's broad interpretation of public concern applied such that the plaintiffs' defamation claim failed" (id., citing Mirza v Amar, 513 F.Supp.3d 292, 300 [ED NY 2021] [finding that "[d]efendant's [Yelp] reviews of plaintiffs' public business," a medical practice that offered injections of Botox and other cosmetic procedures, "qualify as commenting on a matter of legitimate public concern"]).
Dossett v Ho-Chunk, Inc., 472 F.Supp.3d 900, 905 (D Oregon 2020).
Id., American Antiquities, The Town Cryer, available at https://www.americanantiquities.com/Journal%20Articles/thetowncryer.html#:~:text=All%20through%20the%20American%20Colonies,into%20the%20early%2020th%20century.
"Having read out his message, the town crier would then attach it to the door post of the local inn, so 'posting a notice', the reason why newspapers are often called 'The Post'" (Ellen Castelow, Historic UK, The Town Crier, https://www.historic-uk.com/CultureUK/The-Town-Crier/).
Id.; see n 40, supra.
Defendant's Counsel herein, Remy Green, made the following official comment in 2019 to the NYS Senate Anti-Slapp bill:" This bill is an absolutely vital and necessary measure to protect ordinary citizens from well-heeled attempts to cow criticism. As a note of both authority and bias, I am an attorney regularly litigating defamation cases" (2019 NY Senate Bill S52A Comment [Jan. 9, 2019], available at https://www.nysenate.gov/legislation/bills/2019/S52).
For the foregoing reasons, This Honorable Court finds that this instant matter is not an action within the ambit of Anti-SLAPP Law pursuant to Civil Rights Law 70-a, 76-a and CPLR 3211 (g), and consequently, Defendant's Motion to Dismiss and for attorney fees is hereby DENIED; Plaintiff's Cross-Motion to Discontinue pursuant to CPLR 3217 is, with prejudice, GRANTED.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.
SO ORDERED.