EUSTACHE v. Sharon LaFia, Defendant–Appellant. (2025)

Order, Supreme Court, New York County (Judy H. Kim, J.), entered November 15, 2023, which, to the extent appealed from as limited by the briefs, denied defendant Sharon LaFia's motion under CPLR 3211 and 3212 to dismiss plaintiff's retaliation cause of action, unanimously affirmed, without costs.

LaFia's motion for summary judgment was properly denied as premature because it was made “before issue had been joined by service of an answer” (Adago v. Sy, 216 A.D.3d 402, 402–403, 189 N.Y.S.3d 94 [1st Dept. 2023];  see CPLR 3212[a]).  Nor is this “a case where both sides deliberately [laid] bare their proof and [made] clear that they were charting a summary judgment course pursuant to CPLR 3211(c)” thus permitting the court to treat LaFia's pre-answer motion to dismiss as one for summary judgment (Adago, 216 A.D.3d at 402, 189 N.Y.S.3d 94).  Indeed, plaintiff opposed the motion by asserting that at this early stage in discovery he did not have the documents necessary to oppose the motion.

To the extent LaFia sought dismissal under CPLR 3211(a), Supreme Court properly denied the motion as barred by the single motion rule, which “permits a party to move only once upon one or more of the grounds enumerated under CPLR 3211(a)” (TRB Acquisitions LLC v. Yedid, 225 A.D.3d 508, 508, 207 N.Y.S.3d 76 [1st Dept. 2024];  see CPLR 3211[e]).  LaFia's arguments about the sufficiency of the allegations were already raised in her prior motion to dismiss and were rejected by the court (Eustache v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 2023 N.Y. Slip Op. 30606[U], *7, 2023 WL 2307500 [Sup. Ct., N.Y. County, March 1, 2023]).

Nor is LaFia entitled to a successive motion to dismiss under the November 10, 2020 amendments to the anti-SLAPP law (Civil Rights Law § 76–a;  CPLR 3211[g]) because this action was commenced in 2019 and “the anti-SLAPP law does not have retroactive application” (Reeves v. Associated Newspapers, Ltd., 232 A.D.3d 10, 19, 218 N.Y.S.3d 19 [1st Dept. 2024]).  Although the statute's separate provision creating a counterclaim for damages and attorneys’ fees under § 70–a applies prospectively to cases commenced or continued after the effective date, the amended definition of an “action involving public petition and participation” does not apply retroactively to motions to dismiss filed in actions commenced prior to the amendments’ effective date (see Reeves, 232 A.D.3d at 19, 218 N.Y.S.3d 19; VIP Pet Grooming Studio, Inc. v. Sproule, 224 A.D.3d 78, 89–90, 203 N.Y.S.3d 681 [2d Dept. 2024]; Burton v. Porcelain, 223 A.D.3d 775, 777, 204 N.Y.S.3d 199 [2d Dept. 2024]).

We have considered LaFia's remaining contentions and find them unavailing.