BILL NUMBER:S1539

TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to
creating the anti-SLAPP act

PURPOSE:

Creates the anti-SLAPP act.

SUMMARY OF PROVISIONS:

Section 1: Entitles the act the "anti-SLAPP Act"

Section 2: Amends subdivisions (c) and (g) of section 3211 of the
civil practice law and rules. Subdivision (c) as amended by the
judicial conference proposal number 4 for the year 1973 is amended to
provide a new cross-reference to subdivision (g).

Subdivision (g) is amended to include a provision requiring that
discovery be stayed pending a decision on the motion and that the
court shall set a hearing date no later than 60 days after the date of
service of the motion unless docket conditions require a later
hearing, but there hearing shall not occur more than ninety days after
service of the motion. Additionally subdivision (g) requires that if a
              

motion to dismiss is granted the court shall provide for the
imposition of costs, sanctions and reasonably attorney's fees.

Section 3: Establishes the effective date.

JUSTIFICATION:

Strategic Lawsuits against Public Participation, also known as SLAPP
suits, are suits brought purposefully to restrict free speech, and
ordinarily arise out of defamation lawsuits. The primary difference
between a generic defamation suit and a SLAPP suit is the plaintiff in
a SLAPP suit is generally uninterested in winning their lawsuit, as
opposed to making the exercise of free speech prohibitively expensive,
thereby creating a "chilling effect" against public expression of
ideas and values.

Consequently, SLAPP suits are most often seen being lodged against
individuals or small underfunded groups whose lack of resources hamper
them from affording legal counsel, which would be necessary for them
to prevail in the "defamation" suit. The goal of such expensive
litigation is to intimidate, censor, disparage, burden or otherwise
punish activists for exercising their constitutional right to free
speech and protest.

As of 2012, twenty-eight (28) states have established anti-slapp
legislation. It is imperative that New York State continue the policy
of protecting the rights of citizens by strengthening its existing
anti-SLAPP laws by making it more difficult to use the court as a tool
for silencing public speech. Strengthening New York's existing
anti-SLAPP laws would protect New Yorkers against those that would
infringe on free speech rights, and would further strengthen the


vigorous debate of ideas that characterizes New York's political
culture.

In a 1992 decision where a real estate developer sued a not-for-profit
group, New York State Supreme Court Judge Nicholas Colabella Jr.,
stated in reference to SLAPP lawsuits: "Short of a gun to the head, a
greater threat to First Amendment expression can scarcely be
imagined." Gordon v Marrone, 155 Misc. 2d 726, 736. Similarly, in
another 1992 decision when a local block association was sued by a
developer for providing its opinion in a zoning case, the Court found
that a lawsuit "impermissibly assailed an exercise of the defendant's
constitutional right to petition government for a redress of
grievances." In the Matter of Entertainment Partners Group, Inc. v.
Davis, 590 N.Y.S.2d 979 (1992).

At least in part because of those two cases in 1992, the New York
State legislature declared that it was a policy of the state that the
rights of citizens to participate freely in the public process be
safeguarded. The legislature subsequently passed sections 70-a and
76-a of the Civil Rights Law (CRL), and sections 3211(g) and 3212(b)
of the Civil Practice Law and Rules (CPLR) to create New York's first
anti-SLAPP laws.

New York's anti-SLAPP law stops short of protecting all constitutional
speech however, and is limited to protecting individuals against
entities/individual seeking permits or making other applications to
government bodies. Thus where a defendant is or was sued because of
their reporting, commenting, ruling upon, challenging or opposing an
application permit, New York's law protects them. There are a number
of issues with New York's existing laws however. First, New York's
anti-SLAPP protections do not halt discovery which one is trying to
dismiss the suit. Thus, defendants can spend cripplingly large amounts
of money despite prevailing on the underlying frivolous lawsuit.
Second, the imposition of anti-SLAPP damages and/or costs and fees is
not mandatory and courts can choose not to punish the frivolous
plaintiff for bringing a suit restricting crucial 1st Amendment
speech.

This bill will redress those two failings in New York's existing law
and begin a conversation about re-energizing New Yorkers' right to
free speech where government action is concerned.

LEGISLATIVE HISTORY:

2013-2014: S. 6554 - Referred to Judiciary

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

This act shall take effect immediately.