Bill S1539-2015

Creates the anti-SLAPP act

Creates the anti-SLAPP act.

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  • Jan 13, 2015: REFERRED TO JUDICIARY

Memo

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 1539 2015-2016 Regular Sessions IN SENATE January 13, 2015 ___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, in relation to creat- ing the anti-SLAPP act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. This act shall be known and may be cited as the "anti-SLAPP act". S 2. Subdivisions (c) and (g) of rule 3211 of the civil practice law and rules, subdivision (c) as amended by judicial conference proposal number 4 for the year 1973, subdivision (g) as added by chapter 767 of the laws of 1992, are amended to read as follows: (c) Evidence permitted; immediate trial; motion treated as one for summary judgment. Upon the hearing of a motion made under subdivision (a) [or], (b) OR (G), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment. The court may, when appropriate for the expeditious disposition of the controversy, order immediate trial of the issues raised on the motion. (g) Standards for motions to dismiss in certain cases involving public petition and participation. A motion to dismiss based on paragraph seven of subdivision (a) of this section, in which the moving party has demon- strated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law. DISCOVERY SHALL BE SUSPENDED PENDING A DECISION ON THE MOTION. The court shall grant preference in
the hearing of such motion AND SHALL SET SUCH HEARING DATE NO LATER THAN SIXTY DAYS AFTER THE DATE OF SERVICE OF THE MOTION UNLESS THE DOCKET CONDITION OF THE COURT REQUIRES A LATER HEARING, BUT IN NO EVENT SHALL THE HEARING OCCUR MORE THAN NINETY DAYS AFTER SERVICE OF THE MOTION. IF A MOTION TO DISMISS IS GRANTED THE COURT SHALL PROVIDE FOR THE IMPOSI- TION OF COSTS OR OTHER SANCTIONS, INCLUDING IMPOSITION OF REASONABLE ATTORNEY'S FEES. S 3. This act shall take effect immediately.

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