Note: This page covers information specific to New York. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
New York's anti-SLAPP laws, found at N.Y. Civ. Rights Law §§ 70-a, 76-a and N.Y. C.P.L.R. §§ 3211(g), 3212(h), offer protection against SLAPPs brought by individuals or entities seeking permits or applications from a government body (like zoning permits) over efforts of the defendant to report on, comment on, rule on, challenge, or oppose such application or permission. The statute does not protect "free speech" in the abstract; it only protects bloggers, non-traditional journalists, and other online publishers when they address this narrow class of issues (i.e., the granting or denial of a public permit or application).
Activities Covered By The New York Anti-SLAPP Statute
To use New York's anti-SLAPP law, you must show two things. First, you must show that the plaintiff suing you is a "public applicant or permittee." Second, you must show that the plantiff's claim against you is an "action involving public petition and participation."
The statute defines a "public applicant or permittee" as an individual or entity that has obtained or is seeking "a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body." The term could include real estate developers, mining companies, garment manufacturers, and private landowners looking to build new structures on their land, among others. In essence, to meet this requirement, you will have to show that the party suing you requires some sort of government license to operate or proceed with a project.
The statute defines an "action involving public petition and participation" as one that involves a public applicant or permittee (above) seeking damages from a defendant on the basis of the defendant's efforts "to report on, comment on, rule on, challenge or oppose" the application to the government. For example, the definition would include a garment manufacturer's lawsuit against a public interest organization campaigning to have the manufacturer's state registration revoked. For another, the definition would include a real estate developer's lawsuit against a blogger who reported on the developer's attempts to secure a building permit, or who called upon local citizens to oppose the application.
How To Use The New York Anti-SLAPP Statute
The New York anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you by a public applicant or permittee over your efforts to report on, comment on, challenge, or oppose an application to the government.
If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may be able to recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
In ruling on a motion to dismiss under the anti-SLAPP laws, a New York court will determine whether the plaintiff is a "public applicant or permittee" and whether the lawsuit is an "action involving public petition and participation," as described above. If you can establish these two things, then the court will require the plaintiff to demonstrate that its lawsuit "has a substantial basis in law." If the plaintiff fails to do so, then the court will grant your motion and dismiss the case. On the other hand, if the plaintiff's case is strong, then the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.
Note that, unlike in many states, New York's anti-SLAPP motion does not halt discovery (i.e., fact gathering for trial). Thus, you may incur additional litigation expenses while the court hears and decides your motion.
What Happens If You Win A Motion To Dismiss
If you prevail on a motion to dismiss under the New York anti-SLAPP law, the court may award you one or more of the following kinds of damages: costs and attorneys' fees, other compensatory damages, and punitive damages. To receive costs and attorneys' fees, you must show that the plaintiff's lawsuit against you lacked a basis in fact and law. To get compensatory damages (i.e., damages that compensate you for any other harm you suffered as a result of the SLAPP), you must also show that the plaintiff was maliciously attempting to impair your right to free speech or petition. Further, if you can show that if that the attempt to impair your rights was the only reason the plaintiff sued you, you may be entitled to punitive damages.
Note that even if you are able to establish that you meet the requirements for any or all of the types of damages listed above, the court does not have to award those damages. All anti-SLAPP damages, including costs and attorneys' fees, are awarded at the court's discretion under New York law.
