Senate Bill S1789

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1789
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee on Codes
 
 AN ACT to amend the civil rights law, in relation to strategic  lawsuits
   against public participation and to make technical corrections; and to
   amend  chapter  250  of the laws of 2020 amending the civil rights law
   relating to actions involving public petition  and  participation,  in
   relation to the application thereof
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 70-a of the civil rights law, as added  by  chapter
 767  of  the  laws of 1992, paragraph (a) of subdivision 1 as amended by
 chapter 250 of the laws of 2020, is amended to read as follows:
   § 70-a. Actions involving public petition and participation;  recovery
 of damages. 1. FOR THE PURPOSES OF THIS SECTION:
   (A)  A  "STRATEGIC  LAWSUIT  AGAINST  PUBLIC PARTICIPATION" OR "SLAPP"
 MEANS A LEGAL CLAIM COMMENCED OR CONTINUED AGAINST AN INDIVIDUAL  OR  AN
 ORGANIZATION  ARISING OUT OF THAT PARTY'S EXERCISE OF THE CONSTITUTIONAL
 RIGHT OF FREE SPEECH ABOUT AN ISSUE OF  PUBLIC  CONCERN  AND  LACKING  A
 SUBSTANTIAL BASIS IN FACT AND/OR LAW.
   (B)  "SUBSTANTIAL  BASIS"  MEANS A HEIGHTENED PLEADING BURDEN, GREATER
 THAN THAT OF PLAUSIBILITY, COGNIZABILITY, OR REASONABLENESS, AND REQUIR-
 ING A DEMONSTRATION OF A PROBABILITY OF PREVAILING ON THE CLAIM.
   2. A PREVAILING defendant in an action involving public  petition  and
 participation, as defined in paragraph (a) of subdivision one of section
 seventy-six-a of this article, may [maintain] ASSERT A SUBSTANTIVE CAUSE
 OF  ACTION  AGAINST  THE  PLAINTIFF  IN THE UNDERLYING LITIGATION.   THE
 PREVAILING DEFENDANT MAY FILE an action, claim, cross claim or  counter-
 claim to recover damages, including costs and attorney's fees, from [any
 person  who  commenced  or  continued  such  action]  A SLAPP PLAINTIFF;
 provided that:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05016-01-3
 S. 1789                             2
              

 
   (a) costs and attorney's fees shall be recovered upon AN  ADJUDICATION
 PURSUANT  TO SUBDIVISION (G) OF RULE THIRTY-TWO HUNDRED ELEVEN OR SUBDI-
 VISION (H) OF RULE THIRTY-TWO HUNDRED TWELVE OF THE CIVIL  PRACTICE  LAW
 AND  RULES, AN ADJUDICATION PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE
 12(B)  OR  56, OR a demonstration, including an adjudication pursuant to
 subdivision (g) of rule thirty-two hundred eleven or subdivision (h)  of
 rule thirty-two hundred twelve of the civil practice law and rules, that
 the  action involving public petition and participation was commenced or
 continued without a substantial basis in fact and law and could  not  be
 supported  by  a substantial argument for the extension, modification or
 reversal of existing law;
   (b) other compensatory damages may only be  recovered  upon  an  addi-
 tional  demonstration  that  the  action  involving  public petition and
 participation was commenced or continued [for the]  WITH  A  purpose  of
 harassing,  intimidating,  punishing or otherwise maliciously inhibiting
 the free exercise of speech, petition or association rights; and
   (c) punitive damages may only be recovered upon an  additional  demon-
 stration that the action involving public petition and participation 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.
   [2.]  3.  The right to [bring] ASSERT an action under this section can
 be waived only if it is waived specifically. AN ACTION  MUST  BE  INSTI-
 TUTED  NO  LATER THAN ONE YEAR FROM THE DATE THE SLAPP IS FINALLY DETER-
 MINED IN FAVOR OF THE DEFENDANT IN THE UNDERLYING ACTION.
   [3.] 4. Nothing in this section shall affect or preclude the right  of
 any  party  to  any  recovery  otherwise authorized by common law, or by
 statute, law or rule.
   § 2. Paragraph (d) of subdivision 1  of  section  76-a  of  the  civil
 rights  law, as added by chapter 250 of the laws of 2020, is amended and
 a new paragraph (e) is added to read as follows:
   (d) "Public interest" shall be construed broadly, and shall mean:  (1)
 any subject other than a purely private matter; (2) ANY SUBJECT RELATING
 TO  ANY  MATTER OF POLITICAL, SOCIAL, OR OTHER CONCERN TO THE COMMUNITY;
 OR (3) ANY SUBJECT THAT IS OF  LEGITIMATE  NEWS  INTEREST;  THAT  IS,  A
 SUBJECT OF GENERAL INTEREST AND OF VALUE AND CONCERN TO THE PUBLIC.
   (E)  "SUBSTANTIAL  BASIS"  MEANS A HEIGHTENED PLEADING BURDEN, GREATER
 THAN THAT OF PLAUSIBILITY, COGNIZABILITY, OR REASONABLENESS, AND REQUIR-
 ING A DEMONSTRATION OF A PROBABILITY OF PREVAILING ON THE CLAIM.
   § 3. Subdivision 3 of section 76-a of the civil rights law is redesig-
 nated subdivision 4 and a new subdivision 3 is added to read as follows:
   3. A PREVAILING DEFENDANT IN AN ACTION INVOLVING PUBLIC  PARTICIPATION
 SHALL  OBTAIN  COSTS  AND  ATTORNEY'S FEES, VIA MOTION OR OTHER REQUEST,
 UPON AN ADJUDICATION PURSUANT TO  SUBDIVISION  (G)  OF  RULE  THIRTY-TWO
 HUNDRED  ELEVEN  OR SUBDIVISION (H) OF RULE THIRTY-TWO HUNDRED TWELVE OF
 THE CIVIL PRACTICE LAW AND RULES, AN ADJUDICATION  PURSUANT  TO  FEDERAL
 RULES OF CIVIL PROCEDURE 12(B) OR 56, OR A DEMONSTRATION THAT THE ACTION
 INVOLVING  PUBLIC  PETITION AND PARTICIPATION WAS COMMENCED OR CONTINUED
 WITHOUT A SUBSTANTIAL  BASIS  IN  FACT  AND/OR  LAW  AND  COULD  NOT  BE
 SUPPORTED  BY  A SUBSTANTIAL ARGUMENT FOR THE EXTENSION, MODIFICATION OR
 REVERSAL OF EXISTING LAW.
   § 4. Section 71 of the civil rights law, as added by  chapter  924  of
 the laws of 1920, is amended to read as follows:
   §  71.  Damages  in action for suing in name of another. In an action,
 brought by the adverse party, as prescribed in [the last] section SEVEN-
 TY OF THIS ARTICLE, the plaintiff, if he  recovers  final  judgment,  is
 S. 1789                             3
 
 entitled  to recover treble damages. In an action, brought by the person
 whose name was used, as prescribed in [the last] section SEVENTY OF THIS
 ARTICLE, the plaintiff is entitled to recover his  actual  damages,  and
 two hundred and fifty dollars in addition thereto.
   §  5. Section 4 of chapter 250 of the laws of 2020 relating to actions
 involving public petition  and  participation  is  amended  to  read  as
 follows:
   § 4. This act shall take effect immediately AND SHALL APPLY TO ACTIONS
 AND PROCEEDINGS PENDING ON OR FILED ON OR AFTER SUCH EFFECTIVE DATE.
   § 6. This act shall take effect immediately and shall apply to actions
 and proceedings pending on or filed on or after November 10, 2020.