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A05991 Summary:

BILL NOA05991A
 
SAME ASSAME AS S00052-A
 
SPONSORWeinstein
 
COSPNSRSeawright, Abinanti, Lupardo, Simotas, Taylor, Steck, Otis
 
MLTSPNSR
 
Amd §§70-a & 76-a, Civ Rts L; amd R3211, CPLR
 
Requires awarding of costs and attorney fees in frivolous actions involving public petition and participation; expands application of actions involving public petition and participation.
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A05991 Actions:

BILL NOA05991A
 
02/26/2019referred to judiciary
05/30/2019reported referred to codes
06/04/2019reported referred to rules
06/11/2019reported
06/11/2019rules report cal.143
06/11/2019ordered to third reading rules cal.143
01/08/2020ordered to third reading cal.226
04/02/2020amended on third reading (t) 5991a
07/21/2020passed assembly
07/21/2020delivered to senate
07/21/2020REFERRED TO RULES
07/22/2020SUBSTITUTED FOR S52A
07/22/20203RD READING CAL.757
07/22/2020PASSED SENATE
07/22/2020RETURNED TO ASSEMBLY
10/30/2020delivered to governor
11/10/2020signed chap.250
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A05991 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5991A
 
SPONSOR: Weinstein
  TITLE OF BILL: An act to amend the civil rights law, in relation to actions involving public petition and participation; and to amend the civil practice law and rules, in relation to stay of proceedings   PURPOSE OF BILL: The purpose of this bill is to extend the protection of New York's current law regarding Strategic Lawsuits Against Public Participation ("SLAPP suits"). The amendment will protect citizens' from frivolous litigation that is intended to silence their exercise of the rights of free speech and petition about matters of public interest.   SUMMARY OF PROVISIONS OF BILL: Section 1 of the bill would amend section 70-a of the Civil Rights Laws to provide that costs and attorney's fees "shall be recovered upon a I demonstration that -la SLAPP suit was commenced or continued without a substantial basis in fact or law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law." Section 2 of the bill would amend section 76-a of the Civil Rights Law to define an "action involving public petition and participation" to include a claim related to: i. Any communication in a place open to the public or a public forum in connection with an issue of public interest; or ii. Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition. The bill also specifies that "public interest" should be broadly construed. Section 3 of the bill contains a stay of discovery and pending hearings or motions once a motion to dismiss a SLAPP action has been made pursu- ant to CPLR 3211 (a) (7). Section 4 specifies that the act shall take effect immediately.   JUSTIFICATION: Section 76-a of the Civil Rights Law was originally enacted by the Legislature to provide "the utmost protection for the free exercise or speech, petition, and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern." L. 1992 Ch. 767. However, as drafted, and as narrowly inter- preted by the courts, the application of Section 76-a has failed to accomplish that objective. In practice, the current statute has been strictly limited to cases initiated by persons or business entities that are embroiled in controversies over a public application or permit, usually in a real estate development situation. Meanwhile, many frivo- lous lawsuits are filed each year that are calculated solely to silence free speech and public participation, which do not specifically arise in the context of the public "permit" process. By revising the definition of an "action involving public petition and participation," this amend- ment to Section 76-a will better advance the purposes that the Legisla- ture originally identified in enacting New York's anti-SLAPP law. This is done by broadly widening the ambit of the law to include matters of "public interest", which is to be broadly construed, e.g. anything other than a "purely private matter". Additionally, the principal remedy currently provided to victims of SLAPP suits in New York is almost never actually imposed. The courts have failed to use their discretionary power to award costs and attor- ney's fees to a defendant found to have been victimized by a frivolous lawsuit intended only to chill free speech. By an award of costs and fees, the Legislature had originally intended to address "threat of personal damages and litigation costs . . . as a means of harassing, intimidating, or punishing individuals, unincorporated associations, not-for-profit corporations and others who have involved themselves in public affairs." L. 1992 Ch. 767. This amendment to Section 70-A of the Civil Rights Law makes clear that a court "shall" impose an award of costs and fees, but only if the court fords that the case has been initiated or pursued in bad faith. Together, the two amendments will protect citizens against the threat -- and financial reality -- of abusive litigation, but will not discourage meritorious litigation. Further, a mandatory award of attorney's fees is necessary to discourage SLAPP lawsuits - which attempt to chill free speech by definition - from being instituted. A stay of the SLAPP action is necessary while a motion to dismiss is pending in order to prevent other means in which the SLAP? plaintiff attempts to cause harm or injury to the SLAPP defendant. For example, this is often done by attempting to tie the defendant up in litigation, including discovery, and/or by forcing the defendant to have to advance legal fees and costs to their counsel for otherwise unnecessary proceedings.   LEGISLATIVE HISTORY: 2018:A.1413/S.68- A.Judi(ECS)/S.Codes 2018:Similar to:A.5292/S.2183- A.Cal/S.Codes 2017:Similar to:A.5292/S.2183- PA /S.Codes 2015-16: A.258/5.1638 -PA/S. Codes 2014: A.856/S.7280 - PA/S. Rules 2013: A.856 - PA 2012: A.10594 - A. Judi   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: Immediately.
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A05991 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5991--A
                                                                Cal. No. 226
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 26, 2019
                                       ___________
 
        Introduced by M. of A. WEINSTEIN, SEAWRIGHT, ABINANTI, LUPARDO, SIMOTAS,
          TAYLOR,  STECK -- read once and referred to the Committee on Judiciary
          -- ordered to a third reading, amended and ordered reprinted,  retain-
          ing its place on the order of third reading

        AN  ACT  to amend the civil rights law, in relation to actions involving
          public petition and participation; and to amend the civil practice law
          and rules, in relation to stay of proceedings
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Paragraph (a) of subdivision 1 of section 70-a of the civil
     2  rights  law,  as added by chapter 767 of the laws of 1992, is amended to
     3  read as follows:
     4    (a) costs and attorney's fees [may] shall be recovered upon  a  demon-
     5  stration,  including an adjudication pursuant to subdivision (g) of rule
     6  thirty-two hundred eleven or subdivision (h) of rule thirty-two  hundred
     7  twelve  of  the  civil practice law and rules, that the action involving
     8  public petition and participation was commenced or continued  without  a
     9  substantial  basis  in  fact  and  law  and  could not be supported by a
    10  substantial argument for the  extension,  modification  or  reversal  of
    11  existing law;
    12    §  2.  Subdivision 1 of section 76-a of the civil rights law, as added
    13  by chapter 767 of the laws of 1992, is amended to read as follows:
    14    1. For purposes of this section:
    15    (a) An "action involving public petition  and  participation"  is  [an
    16  action,]  a  claim[,  cross  claim  or  counterclaim for damages that is
    17  brought by a public applicant or permittee, and is materially related to
    18  any efforts of the defendant to report on, comment on,  rule  on,  chal-
    19  lenge or oppose such application or permission] based upon:
    20    (1)  any communication in a place open to the public or a public forum
    21  in connection with an issue of public interest; or
    22    (2) any other lawful conduct in furtherance of  the  exercise  of  the
    23  constitutional  right  of  free  speech  in  connection with an issue of
    24  public interest, or in furtherance of the exercise of the constitutional
    25  right of petition.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04075-05-0

        A. 5991--A                          2
 
     1    (b) ["Public applicant or permittee" shall mean  any  person  who  has
     2  applied for or obtained a permit, zoning change, lease, license, certif-
     3  icate or other entitlement for use or permission to act from any govern-
     4  ment  body,  or  any  person with an interest, connection or affiliation
     5  with  such  person  that  is  materially  related to such application or
     6  permission] "Claim" includes any lawsuit, cause of action,  cross-claim,
     7  counterclaim, or other judicial pleading or filing requesting relief.
     8    (c)  "Communication"  shall mean any statement, claim, allegation in a
     9  proceeding, decision, protest, writing, argument,  contention  or  other
    10  expression.
    11    [(d)  "Government  body"  shall  mean any municipality, the state, any
    12  other political subdivision or agency of such, the  federal  government,
    13  any  public  benefit  corporation,  or  any  public authority, board, or
    14  commission.] (d) "Public interest" shall be construed broadly, and shall
    15  mean any subject other than a purely private matter.
    16    § 3. Subdivision (g) of rule 3211 of the civil practice law and rules,
    17  as added by chapter 767 of the laws of  1992,  is  amended  to  read  as
    18  follows:
    19    (g)  [Standards]  Stay  of  proceedings  and  standards for motions to
    20  dismiss in certain cases involving public petition and participation. 1.
    21  A motion to dismiss based on paragraph seven of subdivision (a) of  this
    22  section,  in  which  the  moving party has demonstrated that the action,
    23  claim, cross claim or counterclaim subject to the motion  is  an  action
    24  involving  public petition and participation as defined in paragraph (a)
    25  of subdivision one of section seventy-six-a of  the  civil  rights  law,
    26  shall  be granted unless the party responding to the motion demonstrates
    27  that the cause of action has a substantial basis in law or is  supported
    28  by  a substantial argument for an extension, modification or reversal of
    29  existing law. The court shall grant preference in the  hearing  of  such
    30  motion.
    31    2. In making its determination on a motion to dismiss made pursuant to
    32  paragraph  one  of this subdivision, the court shall consider the plead-
    33  ings, and supporting and opposing  affidavits  stating  the  facts  upon
    34  which the action or defense is based. No determination made by the court
    35  on  a motion to dismiss brought under this section, nor the fact of that
    36  determination, shall be admissible in evidence at any later stage of the
    37  case, or in any subsequent action, and no burden of proof or  degree  of
    38  proof  otherwise  applicable  shall be affected by that determination in
    39  any later stage of the case or in any subsequent proceeding.
    40    3. All discovery, pending hearings, and motions in the action shall be
    41  stayed upon the filing of a motion made pursuant to  this  section.  The
    42  stay shall remain in effect until notice of entry of the order ruling on
    43  the  motion.  The  court,  on  noticed  motion and upon a showing by the
    44  nonmoving party, by affidavit or declaration under  penalty  of  perjury
    45  that, for specified reasons, it cannot present facts essential to justi-
    46  fy  its  opposition,  may  order  that  specified discovery be conducted
    47  notwithstanding this subdivision. Such discovery, if granted,  shall  be
    48  limited to the issues raised in the motion to dismiss.
    49    4.  For  purposes  of  this section, "complaint" includes "cross-comp-
    50  laint" and  "petition",  "plaintiff"  includes  "cross-complainant"  and
    51  "petitioner",  and  "defendant" includes "cross-defendant" and "respond-
    52  ent."
    53    § 4. This act shall take effect immediately.
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