Amd 70-a, 76-a & 71, Civ Rts L; amd 4, Chap 250 of 2020
Relates to strategic lawsuits against public participation; makes technical corrections; relates to the applicability of chapter 250 of the laws of 2020 amending the civil rights law relating to actions involving public petition and participation.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7288 Revised 5/17/2023
SPONSOR: Weinstein TITLE OF BILL:
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
PURPOSE:
To clarify that chapter 250 of the laws of 2020, enhancing anti-SLAPP
protections, applied to cases pending on the effective date of the law,
and to make other necessary changes to clarify anti-SLAPP procedures and
the substantial basis standard.
SUMMARY OF PROVISIONS: OF BILL:
Section 1 clarifies the procedures for asserting a substantive
anti-SLAPP cause of action and clarifies the substantial basis standard.
Section 2 clarifies the definition of "public interest" and "substantial
basis."
Section 3 provides for the recovery of costs and attorney's fees on
motion upon adjudication that a SLAPP had no 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 4 provides technical changes to section 71 of the civil rights
law.
Section 5 clarifies that chapter 250 of the laws of 2020 applied to
actions pending on the chapter's effective date.
Section 6 provides that the act takes effect immediately and applies to
actions and proceedings pending on or filed on or after November 10,
2020.
JUSTIFICATION:
This legislation intends to clarify that chapter 250 of the laws of
2020, which reformed New York's anti-SLAPP statutes, applied to actions
and proceedings pending on the chapter's effective date. While the
legislative history and intent of the sponsor was clear that Chapter 250
applied to pending actions and proceedings, the Appellate Division in
Gottwald v. Sebert, 203 A.D.3d 488 (1' Dept 2022) held otherwise.
This bill would remedy that inconsistent decision, which circumvented
the legislative intent of Chapter 250. This bill also makes several
other changes to clarify the substantial basis standard and streamline
various procedural aspects.
LEGISLATIVE HISTORY:
2021-2022: S.9239 (Hoylman) - S. Codes
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
Immediately and applies to actions and proceedings pending on or filed
on or after November 10, 2020.
STATE OF NEW YORK
________________________________________________________________________
7288
2023-2024 Regular Sessions
IN ASSEMBLY
May 17, 2023
___________
Introduced by M. of A. WEINSTEIN -- read once and referred to the
Committee on Judiciary
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:
1 Section 1. Section 70-a of the civil rights law, as added by chapter
2 767 of the laws of 1992, paragraph (a) of subdivision 1 as amended by
3 chapter 250 of the laws of 2020, is amended to read as follows:
4 § 70-a. Actions involving public petition and participation; recovery
5 of damages. 1. For the purposes of this section:
6 (a) A "strategic lawsuit against public participation" or "SLAPP"
7 means a legal claim commenced or continued against an individual or an
8 organization arising out of that party's exercise of the constitutional
9 right of free speech about an issue of public concern and lacking a
10 substantial basis in fact and/or law.
11 (b) "Substantial basis" means a heightened pleading burden, greater
12 than that of plausibility, cognizability, or reasonableness, and requir-
13 ing a demonstration of a probability of prevailing on the claim.
14 2. A prevailing defendant in an action involving public petition and
15 participation, as defined in paragraph (a) of subdivision one of section
16 seventy-six-a of this article, may [maintain] assert a substantive cause
17 of action against the plaintiff in the underlying litigation. The
18 prevailing defendant may file an action, claim, cross claim or counter-
19 claim to recover damages, including costs and attorney's fees, from [any
20 person who commenced or continued such action] a SLAPP plaintiff;
21 provided that:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05016-01-3
A. 7288 2
1 (a) costs and attorney's fees shall be recovered upon an adjudication
2 pursuant to subdivision (g) of rule thirty-two hundred eleven or subdi-
3 vision (h) of rule thirty-two hundred twelve of the civil practice law
4 and rules, an adjudication pursuant to federal rules of civil procedure
5 12(b) or 56, or a demonstration, including an adjudication pursuant to
6 subdivision (g) of rule thirty-two hundred eleven or subdivision (h) of
7 rule thirty-two hundred twelve of the civil practice law and rules, that
8 the action involving public petition and participation was commenced or
9 continued without a substantial basis in fact and law and could not be
10 supported by a substantial argument for the extension, modification or
11 reversal of existing law;
12 (b) other compensatory damages may only be recovered upon an addi-
13 tional demonstration that the action involving public petition and
14 participation was commenced or continued [for the] with a purpose of
15 harassing, intimidating, punishing or otherwise maliciously inhibiting
16 the free exercise of speech, petition or association rights; and
17 (c) punitive damages may only be recovered upon an additional demon-
18 stration that the action involving public petition and participation was
19 commenced or continued for the sole purpose of harassing, intimidating,
20 punishing or otherwise maliciously inhibiting the free exercise of
21 speech, petition or association rights.
22 [2.] 3. The right to [bring] assert an action under this section can
23 be waived only if it is waived specifically. An action must be insti-
24 tuted no later than one year from the date the SLAPP is finally deter-
25 mined in favor of the defendant in the underlying action.
26 [3.] 4. Nothing in this section shall affect or preclude the right of
27 any party to any recovery otherwise authorized by common law, or by
28 statute, law or rule.
29 § 2. Paragraph (d) of subdivision 1 of section 76-a of the civil
30 rights law, as added by chapter 250 of the laws of 2020, is amended and
31 a new paragraph (e) is added to read as follows:
32 (d) "Public interest" shall be construed broadly, and shall mean: (1)
33 any subject other than a purely private matter; (2) any subject relating
34 to any matter of political, social, or other concern to the community;
35 or (3) any subject that is of legitimate news interest; that is, a
36 subject of general interest and of value and concern to the public.
37 (e) "Substantial basis" means a heightened pleading burden, greater
38 than that of plausibility, cognizability, or reasonableness, and requir-
39 ing a demonstration of a probability of prevailing on the claim.
40 § 3. Subdivision 3 of section 76-a of the civil rights law is redesig-
41 nated subdivision 4 and a new subdivision 3 is added to read as follows:
42 3. A prevailing defendant in an action involving public participation
43 shall obtain costs and attorney's fees, via motion or other request,
44 upon an adjudication pursuant to subdivision (g) of rule thirty-two
45 hundred eleven or subdivision (h) of rule thirty-two hundred twelve of
46 the civil practice law and rules, an adjudication pursuant to federal
47 rules of civil procedure 12(b) or 56, or a demonstration that the action
48 involving public petition and participation was commenced or continued
49 without a substantial basis in fact and/or law and could not be
50 supported by a substantial argument for the extension, modification or
51 reversal of existing law.
52 § 4. Section 71 of the civil rights law, as added by chapter 924 of
53 the laws of 1920, is amended to read as follows:
54 § 71. Damages in action for suing in name of another. In an action,
55 brought by the adverse party, as prescribed in [the last] section seven-
56 ty of this article, the plaintiff, if he recovers final judgment, is
A. 7288 3
1 entitled to recover treble damages. In an action, brought by the person
2 whose name was used, as prescribed in [the last] section seventy of this
3 article, the plaintiff is entitled to recover his actual damages, and
4 two hundred and fifty dollars in addition thereto.
5 § 5. Section 4 of chapter 250 of the laws of 2020 relating to actions
6 involving public petition and participation is amended to read as
7 follows:
8 § 4. This act shall take effect immediately and shall apply to actions
9 and proceedings pending on or filed on or after such effective date.
10 § 6. This act shall take effect immediately and shall apply to actions
11 and proceedings pending on or filed on or after November 10, 2020.
