Senate Bill S7924

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7924

                            I N  S E N A T E

                              June 20, 2014
                               ___________

Introduced  by  Sen.  SKELOS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the civil rights law, in relation to  actions  involving
  public  petition  and  participation  and  the  civil practice law and
  rules, in relation to actions involving  public  petition  or  partic-
  ipation

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 1 of section 70-a of the civil rights  law,  as
added by chapter 767 of the laws of 1992, is amended to read as follows:
  1.  A  defendant  in  an  action involving public petition and partic-
ipation, as defined in paragraph  (a)  of  subdivision  one  of  section
seventy-six-a  of  this  article,  may  maintain an action, claim, cross
claim or counterclaim to recover damages, including costs and attorney's
fees, from any person who commenced or continued such  action;  provided
that:
  (a) costs and REASONABLE attorney's fees [may] SHALL be recovered upon
a demonstration, PURSUANT TO SECTION EIGHTY-THREE HUNDRED THREE-B OF THE
CIVIL  PRACTICE  LAW  AND  RULES; OR MAY BE RECOVERED IF THE COURT FINDS
that  the  action  involving  public  petition  and  participation   was
commenced  or  continued  BY  A  PLAINTIFF OR A COUNTERCLAIM, DEFENSE OR
CROSS-CLAIM IS COMMENCED OR CONTINUED BY A DEFENDANT AND IS FOUND TO  BE
without  [a  substantial] ANY REASONABLE basis in fact and law and could
not be supported by [a  substantial]  AN  argument  for  the  extension,
modification or reversal of existing law;
  (B)  AN  AWARD OF COSTS OR FEES WILL NOT BE ASSESSED IN AN ACTION THAT
WAS DISCONTINUED WITHIN TWENTY DAYS OF THE PARTY OR  ATTORNEY  RECEIVING
ACTUAL  NOTICE  THAT THE CLAIM LACKED A REASONABLE BASIS IN FACT OR LAW,
WHICH MAY HAVE OCCURRED PRIOR TO THE COMMENCEMENT OF THE ACTION.    SUCH
NOTICE  SHALL  BE PROVIDED TO THE PARTY OR ATTORNEY ON A FORM THAT SHALL
BE PRODUCED AND MADE AVAILABLE BY THE NEW YORK  STATE  OFFICE  OF  COURT
ADMINISTRATION  WITHIN  NINETY DAYS OF THIS PARAGRAPH TAKING EFFECT. THE
FORM SHALL BE IN PLAIN LANGUAGE AND SHALL BE NO MORE THAN  ONE  PAGE  IN
LENGTH;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15609-01-4

S. 7924                             2

  [(b)]  (C)  other  compensatory  damages may only be recovered upon an
additional demonstration that the action involving public  petition  and
participation  was  commenced or continued for the purpose of harassing,
intimidating, punishing or otherwise  maliciously  inhibiting  the  free
exercise of speech, petition or association rights; and
  [(c)]  (D)  punitive  damages may only be recovered upon an additional
demonstration that the action  involving  public  petition  and  partic-
ipation  was  commenced  or continued for the sole purpose of harassing,
intimidating, punishing or otherwise  maliciously  inhibiting  the  free
exercise of speech, petition or association rights.
  S  2.  Subdivision 1 of section 76-a of the civil rights law, as added
by chapter 767 of the laws of 1992, is amended to read as follows:
  1. For purposes of this section:
  (a) An "action involving public petition  and  participation"  is  [an
action,]  A  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,  chal-
lenge or oppose such application or permission] BASED UPON:
  (1)  ANY COMMUNICATION IN A PLACE OPEN TO THE PUBLIC OR A PUBLIC FORUM
IN CONNECTION WITH AN ISSUE OF PUBLIC CONCERN; 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 CONCERN, OR IN FURTHERANCE OF THE EXERCISE OF THE  CONSTITUTIONAL
RIGHT OF PETITION.
  (b)  ["Public  applicant  or  permittee" shall mean any person who has
applied for or obtained a permit, zoning change, lease, license, certif-
icate or other entitlement for use or permission to act from any govern-
ment body, or any person with an  interest,  connection  or  affiliation
with  such  person  that  is  materially  related to such application or
permission] "CLAIM" INCLUDES ANY LAWSUIT, CAUSE OF ACTION,  CROSS-CLAIM,
COUNTERCLAIM, OR OTHER JUDICIAL PLEADING OR FILING REQUESTING RELIEF.
  (c)  "Communication"  shall mean any statement, claim, allegation in a
proceeding, decision, protest, writing, argument,  contention  or  other
expression.
  [(d)  "Government  body"  shall  mean any municipality, the state, any
other political subdivision or agency of such, the  federal  government,
any  public  benefit  corporation,  or  any  public authority, board, or
commission.]
  S 3. The civil practice law and rules  is  amended  by  adding  a  new
section 8303-b to read as follows:
  S  8303-B. COSTS UPON FRIVOLOUS CLAIMS AND COUNTERCLAIMS IN ACTIONS TO
RECOVER DAMAGES FOR PUBLIC PETITION OR PARTICIPATION. (A) IF  AN  ACTION
TO  RECOVER  DAMAGES INVOLVES PUBLIC PETITION OR PARTICIPATION, AND SUCH
ACTION OR CLAIM IS COMMENCED OR CONTINUED BY A PLAINTIFF OR  A  COUNTER-
CLAIM,  DEFENSE  OR CROSS-CLAIM IS COMMENCED OR CONTINUED BY A DEFENDANT
AND IS FOUND, AT ANY TIME DURING THE PROCEEDINGS OR UPON JUDGMENT, TO BE
FRIVOLOUS BY THE COURT, THE COURT SHALL AWARD TO  THE  SUCCESSFUL  PARTY
COSTS AND REASONABLE ATTORNEY'S FEES.
  (B)  THE  COSTS AND FEES AWARDED UNDER SUBDIVISION (A) OF THIS SECTION
SHALL BE ASSESSED EITHER AGAINST THE PARTY BRINGING THE  ACTION,  CLAIM,
CROSS-CLAIM,  DEFENSE  OR  COUNTERCLAIM OR AGAINST THE ATTORNEY FOR SUCH
PARTY, OR AGAINST BOTH, AS MAY BE DETERMINED BY THE  COURT,  BASED  UPON
THE  CIRCUMSTANCES OF THE CASE. SUCH COSTS AND FEES SHALL BE IN ADDITION
TO ANY OTHER JUDGMENT AWARDED TO THE SUCCESSFUL PARTY.

S. 7924                             3

  (C) IN ORDER TO FIND  THE  ACTION,  CLAIM,  COUNTERCLAIM,  DEFENSE  OR
CROSS-CLAIM  TO  BE FRIVOLOUS UNDER SUBDIVISION (A) OF THIS SECTION, THE
COURT MUST FIND ONE OR MORE OF THE FOLLOWING:
  (I)  THE  ACTION,  CLAIM,  COUNTERCLAIM,  DEFENSE  OR  CROSS-CLAIM WAS
COMMENCED, USED OR CONTINUED IN BAD FAITH, SOLELY TO  DELAY  OR  PROLONG
THE  RESOLUTION  OF  THE  LITIGATION  OR TO HARASS OR MALICIOUSLY INJURE
ANOTHER;
  (II) THE ACTION,  CLAIM,  COUNTERCLAIM,  DEFENSE  OR  CROSS-CLAIM  WAS
COMMENCED  OR CONTINUED IN BAD FAITH WITHOUT ANY REASONABLE BASIS IN LAW
OR FACT AND COULD NOT BE SUPPORTED BY  A  GOOD  FAITH  ARGUMENT  FOR  AN
EXTENSION,  MODIFICATION  OR  REVERSAL OF EXISTING LAW.   IF THE ACTION,
CLAIM, COUNTERCLAIM, DEFENSE OR CROSS-CLAIM  WAS  PROMPTLY  DISCONTINUED
WHEN  THE  PARTY OR THE ATTORNEY LEARNED OR SHOULD HAVE LEARNED THAT THE
ACTION, CLAIM,  COUNTERCLAIM,  DEFENSE  OR  CROSS-CLAIM  LACKED  SUCH  A
REASONABLE  BASIS, THE COURT MAY FIND THAT THE PARTY OR THE ATTORNEY DID
NOT ACT IN BAD FAITH.
  S 4. This act  shall  take  effect  immediately  and  shall  apply  to
actions, cross-claims or counterclaims commenced on or after such date.