Anti-SLAPP protection

New York’s anti-SLAPP statutes are N.Y. Civ. Rights Law §§ 70-a, 76-a and N.Y. C.P.L.R. §§ 3211, 3212 .

Law summary

New York’s anti-SLAPP laws protect any communication in a place open to the public or in connection with a matter of public interest. The statute construes “public interest” broadly as it pertains to any subject that is not purely a private matter.

Legal actions

New York’s anti-SLAPP law includes a few features to protect speech:

• Summary judgment: A person facing a SLAPP lawsuit can move for summary judgment, though a court can set a deadline for when such motions can be made. The motion for summary judgment must be supported by an affidavit demonstrating the case has no merit.
• Motion to dismiss: A defendant can move to dismiss a SLAPP lawsuit on the ground that an injury is not stated or has no merit. All discovery is stayed upon the filing of such motion.
• Attorney’s fees: A defendant in an action involving public petition and participation may recover damages, including costs and attorney’s fees. Other compensatory damages may be recovered upon demonstrating the lawsuit sought to harass, intimidate, punish or inhibit the free exercise of speech.

Helpful cases

New York courts adhere to the broad speech protections included in the amended anti-SLAPP statute. However, there is no consensus to expedite the hearings once the anti-SLAPP motion is filed. Still, they impose a greater pleading burden on plaintiffs in SLAPP lawsuits.

Isaly v. Garde (2024)

Biotech hedge fund titan Sam Isaly sued journalist Damian Garde and a former employee Delilah Burke, who in a 2017 news article alleged he harassed and demeaned women for years at OrbiMed Advisors. Soon after, Isaly commenced a litany of actions in state and federal courts, including suing Garde and Burke for defamation. A state court denied discovery and ordered parties to schedule a fees hearing. Isaly appealed, insisting defendants cannot recover fees and costs without answering the pleadings in this action with a counterclaim or filing a new action. The Court disagreed, arguing the defendants could expeditiously halt SLAPP claims and recover attorney’s fees and costs without the burden of the same protracted litigation.

Aristocrat Plastic Surgery P.C. v Silva (2021)

Paige Silva was a patient of Dr. Kevin Terhani and underwent a plastic surgery procedure. Silva afterwards posted a negative review of Dr. Terhani’s private practice on two public internet forums. Terhani sued his patient for defamation and argued the anti-SLAPP law did not apply to his lawsuit because the comments concerned a private matter. The court disagreed and in contrast determined the purpose of a review was to provide information, and in this case provide information to potential patients. The case thus established “public concern” could be broadly interpreted under the newly amended anti-SLAPP statute.

Goldfarb v. Channel One Russia (2023)

A Russian-American microbiologist and activist Alexander Goldfarb sued the Russian TV network Channel One for defamation over coverage of an incident that named Goldfarb as the murderer of a prominent Vladimir Putin critic in 2006. Channel One then sought summary judgment under New York’s anti-SLAPP statute, alleging the suit lacked substantial basis in fact and that it was brought to inhibit the news channel’s free speech. The broadcast network lastly requested attorney’s fees and costs. A district court denied summary judgment because the Russian network did not demonstrate Goldfarb’s suit was meritless in the motion. The court also determined the contested statements were presented as statements of fact, and not opinion, and subsequently ordered a trial.

Reeves v. Associated Newspapers, Ltd. (2024)

Amid a contentious divorce and child custody battle, a CEO of a Manhattan elevator business sued The Daily Mail and reporter Anneta Konstantinides for defamation over an online news article in which Konstantinides described the plaintiff as a “racist ketamine-snorting millionaire.” The defendants filed a motion to dismiss using New York’s anti-SLAPP statute and sought attorney’s fees. The Supreme Court ruled the online article provided accurate reporting of Reeves’ arrests for domestic violence and related criminal proceedings. Furthermore, the reporter’s characterization fairly referred to featured content (texts from Reeves and video of him). Additionally, the court found the elevator tycoon’s claim did not have substantial basis because he did not acquire relevant proof either by appealing for needed discovery or obtain facts to support his opposition to the defendant’s motion to dismiss.

Legislative activity

New York’s anti-SLAPP law was updated and broadened in 2020. The state’s anti-SLAPP statute was originally enacted in 1992 and provided protection in a narrow set of circumstances. Specifically, the statute only offered protection against SLAPPs if a plaintiff sought or held a permit, zoning change, lease, license, or other permission from any government body.

Sen. Brad Hoylman-Sigal introduced a new bill in 2022 to amend the anti-SLAPP statute with more technical revisions, including making it more difficult for those who file SLAPPs to move forward with their cases. To prove their claim has “substantial basis,” plaintiffs are required to demonstrate probability of prevailing on the claim, going beyond proving plausibility and reasonableness. Ultimately, the bill failed to get out of committee.

Currently Senate bill S6784, proposed by Sen. Kevin S. Parker, sits in committee and would amend the anti-SLAPP statute by including a provision that discovery be stayed while a court decides whether to grant or dismiss an anti-SLAPP motion to dismiss. Once a motion to dismiss is filed, the court must also set a hearing date no later than 60 days from the motion’s filing.

Of note

New York’s statute does not provide for interlocutory appeal of a decision on an anti-SLAPP motion, which is common in many other states’ anti-SLAPP laws. However, another provision of New York law guarantees a general right to such an appeal (N.Y. CPLR Rule 5701).