215 WEST 84TH ST OWNER LLC v. BAILEY (2023)

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered September 16, 2022, which, to the extent appealed from, upon granting defendants’ motion to dismiss the complaint, denied defendants’ request for costs, attorneys’ fees, and punitive damages pursuant to Civil Rights Law § 70–a(1)(a) and (c), unanimously modified, on the law, to grant the request for costs and attorneys’ fees and to remand the matter for a determination of such costs and fees, and otherwise affirmed, without costs.

Defendants are entitled to recover costs and attorneys’ fees against plaintiff pursuant to the anti-SLAPP statute as amended in 2020 (see Civil Rights Law § 70–a[1][a], as amended by L 2020, ch 250).  Plaintiff, a real estate developer, commenced this action against defendants in connection with defendants’ legal representation of a tenant in a building that plaintiff had newly acquired, in response to, among other things, statements made by defendants to the media concerning plaintiff's harassment of the tenant in order to get him to vacate his apartment so plaintiff could develop the property into a luxury condo building.  Plaintiff's action involved “public petition and participation,” as defendants’ statements, which concern a landlord/tenant dispute between a large real estate developer and a sole holdout tenant, constituted comments and an exercise of free speech in connection with an issue of public interest, rather than a purely private matter (Civil Rights Law §§ 70–a[1], 76–a[1][a][1], [2];  see Aristocrat Plastic Surgery P.C. v. Silva, 206 A.D.3d 26, 29–31, 169 N.Y.S.3d 272 [1st Dept. 2022];  Cottom v. Meredith Corp., 65 A.D.2d 165, 170–171, 411 N.Y.S.2d 53 [4th Dept. 1978], lv denied 46 N.Y.2d 711, 416 N.Y.S.2d 1025, 389 N.E.2d 841 [1979];  Golan v. Daily News, L.P., 77 Misc.3d 258, 263, 175 N.Y.S.3d 871 [Sup. Ct., N.Y. County 2022], affd 214 A.D.3d 558, 183 N.Y.S.3d 854 [1st Dept. 2023]).  Moreover, the action was “without a substantial basis in fact and law,” as demonstrated by the court's dismissal of the complaint for failure to state a claim (Civil Rights Law § 70–a[1][a];  see also CPLR 3211[a][7], [g]).

Defendants, however, are not entitled to punitive damages because the record does not show that plaintiff commenced the action solely with malicious intent (Civil Rights Law § 70–a[1][c]).