Greenwich Building Company, Plaintiff, v. Joseph Hoots, Defendant. (2026)

The following e-filed papers read herein: NYSCEF Doc. Nos.

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed 7-25

Opposing Memorandum and Affidavits (Affirmations) 26-33

Reply Memorandum and Affidavits (Affirmations 34-37

Supplemental Memoranda and Affidavits (Affirmations) 45-59

FACTUAL BACKGROUND

In this action, Plaintiff Greenwich Building Company ("plaintiff" or "Greenwich") alleges a sole cause of action of defamation against defendant Joseph Hoots ("defendant" or "Hoots"). Plaintiff's cause of action is based upon two alleged defamatory reviews on Google and Houzz by defendant regarding his purchase of a condominium at 120 Java Street in Greenpoint, Brooklyn from nonparty developer 120 Java, LLC. The reviews contain identical language, reading as follows:

My encounter with Ray Steffen and his team, the developers behind 120 Java in Greenpoint, Brooklyn, was less than optimal, to say the least. As a military veteran, I had informed them from the get-go about my plans to use a VA loan to finance the property purchase. They seemed receptive and we had this agreement in black and white.

However, as we approached the closing stage, after a long eight months, they began to show a different side. They inexplicably declined to sign the necessary paperwork related to the VA loan. The end result was that we had to resort to a traditional loan with a higher interest rate and a greater initial down payment. It felt as if they were attempting to push us out of the contract to gain a higher price for the property. This kind of treatment towards veterans, especially in a city like New York, is disheartening.

Furthermore, we encountered significant problems with soundproofing and flooring in the property. They addressed our concerns by sending an acoustic engineer to evaluate the issues, but their report did not align with our experiences. We decided to bring in an independent acoustic consultant, whose findings differed markedly from those of the developer's engineer.

Plaintiff alleges that it is a completely separate entity from any party involved in the development of 120 Java Street, including "Ray Steffen," and that it had not even come into existence at the time of defendant's purchase of the condominium. Plaintiff alleges that it has no relationship to any grievances defendant discussed in his reviews and that the statements are untrue, because they were posted to review websites related to plaintiff and not to 120 Java, LLC or to Ray Steffen.

Defendant moves for dismissal of the complaint pursuant to CPLR 3211(a)(1)(7) for failure to state a claim upon which relief can be granted and pursuant to CPLR 3211(g)(1) and NY Civil Rights Law § 76-a, in that plaintiffs' defamation-related causes of action are precluded by New York's anti-SLAPP statutes. Defendant argues that Ray Steffen is a member of both plaintiff and 120 Java, LLC and that plaintiff's website made direct references to its involvement in the 120 Java Street development, but that those references were removed by plaintiff sometime after the cease-and-desist letter was sent. The motion is opposed in its entirety  ¹ .

Defendant alleges that the contract he signed listed 120 Java LLC as the Sponsor but that he could not find "much if any" information on this company via Google. His online search for the condo building led him to Greenwich's website, which advertised the building as one of its own projects on its website and on Houzz. Defendant did further research on Ray Steffen, who was listed as the manager of 120 Java, LLC on defendant's contract for purchase of the condominium. Defendant discovered that Ray Steffen was associated with both Greenwich and nonparty SL Development (which also advertised the 120 Java Street building on its website). Defendant then decided to leave his reviews on Greenwich's pages.

After receiving plaintiff's cease and desist letter, Hoots went back to confirm his prior internet searches and found that 120 Java had been removed from Greenwich's own website and Houzz. Hoots supports his claim that plaintiff altered its website to remove any reference to 120 Java Street by attaching screen shots reflecting this modification which he recovered using an Internet Archive website.

Defendant claims that the substance of his reviews are factually true. He claims that he initially told the real estate broker and sponsor that based upon his past service as a United States Marine he was eligible to obtain a Veterans loan ("VA Loan") based on his past and that the Mortgage Contingency rider to the Purchase Agreement included a provision allowing him to obtain a VA loan. Hoots asserts that Ray Steffen signed the agreement on behalf of the Sponsor 120 Java as Manager. Hoots was approved for the VA loan which required that the sponsor include language in the sales contract or as an addendum to the contract that purchaser would get back their down payment if the appraisal comes in lower. However, defendant claims the sponsors, which include Ray Steffen, refused to approve the required addendum language and that defendant was forced to obtain a traditional loan to purchase the property under less advantageous terms. Finally, defendant claims that soundproofing in his unit was indeed faulty and that an independent acoustic consultant that he hired found that the acoustic tests done by the Sponsor's hired acoustic company were incorrectly performed. Defendant therefore contends that everything included in his reviews are either factually true or are non-actionable opinion.

Defendant moves to dismiss under CPLR 3211(g) and New York's anti-SLAPP law, arguing that the disputed issues are a matter of public concern. Defendant asserts that the public at large, including but not limited to other unit owners in the building, have an interest in his comments. Defendant further asserts that these matters are of interest to any person who may consider purchasing or renting housing from a building that was developed by any of Steffen's companies. Plaintiff concedes that these matters are of public interest and that the anti-SLAPP law therefore applies.

DISCUSSION

Defamation

Because falsity is a necessary element of a defamation claims, "and only facts are capable of being proven false," it necessarily follows that a statement must consist of "falsifiable facts in order to be actionable." Coleman v. Grand, 523 F. Supp. 3d 244, 261 (E.D.NY 2021) (citing Gross v. NY Times Co. 82 NY2d 146, 153 [1993]); Moonbeam Gateway Mar., LLC v. Tai Chan, 239 AD3d 965, 967 (2d Dept. 2025). Only statements that allege facts may be the subject of defamation suits. 600 W. 115th St. Corp. v. Von Gutfeld, 80 NY2d 130, 139 (1992); Moonbeam Gateway, supra, at 967. It is axiomatic that a factually true statement is completely non-actionable, "regardless of the harm done by the statement." Love v. William Morrow & Co., 193 AD2d 586, 587 (2d Dept. 1993).

The elements of defamation are: "(a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se." Moonbeam Gateway, supra, at 966-67 (citing Bowen v. Van Bramer, 205 AD3d 674-75 [2d Dept. 2022]); Greenberg v. Spitzer, 155 AD3d 27, 41 (2d Dept. 2017).

For causes of action alleging defamation per se, damages are presumed and therefore do not need to be alleged nor proven. VIP Pet Grooming Studio, Inc. v. Sproute, 224 AD3d 78, 80 (2d Dept. 2024); Laguerre v. Maurice, 192 AD3d 44, 50 (2d Dept. 2020); Gatz v. Otis Ford, Inc., 274 AD2d 449, 450 (2d Dept. 2000). A statement is defamatory per se when it falsely, "charges another with a serious crime or tends to injure another in his or her trade, business, or profession." Geraci v. Probst, 61 AD3d 717, 718 (2d Dept. 2009. See also, VIP Pet Grooming Studio, supra, at 80; Kasavana v. Vela, 172 AD3d 1042, 1044 (2d Dept. 2019).

A statement expressing an opinion may not be the basis for a defamation suit, "no matter how vituperative or unreasonable it may be." Steinhilber v. Alphonse, 68 NY2d 283, 289 (1989). See, Davis v. Boeheim, 24 NY3d 262, 269 (2014); Gross, supra, 82 NY2d at 153. Whether a particular statement constitutes an opinion or an objective fact is a question of law. Mann v Abel, 10 NY3d 271, 276 (2008); Stolatis v. Hernandez, 161 AD3d 1207, 1210 (2d Dept. 2018). Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. See Mann, supra, at 276; Crescendo Designs, Ltd. v. Reses, 151 AD3d 1015 (2d Dept. 2017).

In analyzing whether a statement is an opinion or a fact, "it is necessary to consider the [statement] as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable [listener] would have believed that the challenged statements were conveying facts about the plaintiff." Udell v. NYP Holdings, Inc., 169 AD3d 954, 956 (2d Dept. 2019); see Stolatis, supra, at 1210 (defendant's statements, which referred to the plaintiff's actions in causing the demolition of the building as a "crime" and referred to plaintiff as a "vampire," constituted nonactionable opinion or rhetorical hyperbole. "Given the context in which the statements were made, the content of the post as a whole, as well as the content of the other contemporaneous posts on the same Facebook pages, a reasonable reader would have believed that the defendant was communicating his opinion as to whether plaintiff and his company intended from the outset to preserve or replace the building.")

In distinguishing between facts and opinion, the court must consider (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact." Stiloski v. Wingate, 241 AD3d 958, 962 (2d Dept. 2025); Silverman v. Daily News, 129 AD3d 1054, 1055 (2d Dept. 2015). The courts have adopted a "holistic approach" to the third factor. "Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis 'whether the reasonable reader would have believed that the challenged statements were conveying facts about the . . . plaintiff' " Davis, supra, 24 NY3d at 270 citing to Brian v. Richardson, 87 NY2d 46, 51 (1995). See Kerns v. Ishida, 208 AD3d 1102 (1st Dept. 2022) (challenged defamatory statements are expressions of opinion and are therefore not actionable as many of them were prefaced by language stating "in my honest opinion" or "I don't think." Moreover, although the reviews do mix fact and opinion, the allegedly defamatory statements have a "[l]oose, figurative[,] or hyperbolic "tone" such as plaintiff "acts like a psychotic nutcase" and that the office "is run amok." (citations omitted). The statements communicate to a reasonable reader that defendants were dissatisfied customers expressing opinions based on their negative experience with plaintiff's business.

While an expression of pure opinion is not actionable, "a statement of opinion [that] implies that it is based upon facts which justify the opinion but are unaware to those reading or hearing it, ....is a 'mixed opinion' and is 'actionable." Stega v. NY Downtown Hosp., 31 NY3d 661, 675 (2018) citing to Steinhilber, supra, 68 NY2d at 289. See, Davis v. Boeheim, 24 NY3d 262, 269 (2014); VIP Pet Grooming Studio, supra, at 91-92. "The actionable element of a 'mixed opinion' is not the false opinion itself—it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking." Steinhilber, supra, at 290; Moonbeam Gateway, supra, at 967 (defendant's description of the plaintiff as a "shady company" amounted to no more than "nonactionable opinion or rhetorical hyperbole but statement that plaintiff "is engaged in money laundering" did not constitute pure nonactionable opinion). See, Stiloski, supra, 241 AD3d at 962 (Defendant did not call Stiloski a "neo-Nazi" which could arguably be pure opinion but rather in a "nuanced" statement" said that plaintiff was a "Tarrytown extremist who supports neo-Nazi causes" which could be readily proven true and false.)

Actual Malice

Actual malice requires a showing that the statements were "made with knowledge that [they were] false or with reckless disregard of whether [they were] false or not." Palin v. New York Times Co. 940 F.3d 804, 810 (2d Cir. 2019). See also, New York Times v. Sullivan, 376 U.S. 254, 280, 11 L. Ed. 2d 686 (1964). New York's anti-SLAPP statute defines actual malice in the same way. Civil Rights Law § 76-a (2). This means that Plaintiff cannot merely allege that the publisher failed to fully investigate or failed to uncover falsity. See Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688, L. Ed. 2d 562 (1989). The New York State Court of Appeals has adopted the Sullivan court's definition of the term. Huggins v. Moore, 94 NY2d 296, 301 (1999).

In analyzing whether a statement was made with actual malice, "there is a critical difference between not knowing whether something is true and being highly aware that it is probably false;" solely the latter establishes actual malice. Liberman v. Gelstein, 80 NY2d 429, 438 (1992). "[O]nly those false statements made with the high degree of awareness of their probable falsity" constitute statements made with actual malice. Garrison v. Louisiana., 379 U.S. 64, 74 (1964). "Where the question of truth or falsity is a close one, a court should err on the side of non-actionability" to promote free speech and avoid any potential chilling effects. Celle v. Filipino Reporter Enters., 209 F.3d 163, 188 (2d Cir., 2000) (quoting Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292 [D.C., 1988]).

"[A]ctual malice cannot be established merely because reliance on a source's information is negligent . . . the mere failure to conduct further investigation is insufficient to establish actual malice." Suozzi v. Parente, 202 AD2d 94, 101-102 (1st Dept. 1994). While evidence of ill will may support a finding of actual malice, ill will alone is not sufficient to establish actual malice. Di Lorenzo v. New York News, Inc., 78 AD2d 669, 672 (2d Dept. 1980); see also Masson v. New Yorker Magazine, 501 U.S. 496, 510 (1991).

"The [actual malice] inquiry is [ . . . ] a subjective one, "the critical question being the state of mind of the publisher of the allegedly [defamatory] statements at the time of publication." Kipper v. NYP Holdings Co., 12 NY3d 348, 354 (2009) (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 511 n.30 [1984]). See, Palin v. NY Times, supra, 940 F. 3d at 816. This subjective inquiry, however, is typically inferred from objective facts, as "it would be rare for a defendant to admit" that they made the statement[s] at issue with actual malice." Bose Corp. v. Consumers Union of United States, Inc., 692 F.2d 189, 196 (1st Cir., 1982), aff'd 466 U.S. 485.

Further, "[a] plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence." Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 668 (1989). "Evidence of ill will combined with other circumstantial evidence indicating that the defendant acted with reckless disregard of the truth or falsity of a defamatory statement may also support a finding of actual malice." Celle, supra, 209 F. 3d at 183. (Plaintiff introduced sufficient circumstantial evidence to establish that defendant entertained serious doubts about the truth of the headline "US judge finds Celle 'negligent.' " This conclusion is based in part on evidence indicating ill will and personal animosity between plaintiff and defendant); Clyburn v. News World Communications Inc., 903 F. 2d 29, 33 (D.C. Cir.) (Circumstantial evidence such as the existence of obvious reasons to doubt truth of informant or accuracy of his reports); Zuckerbrot v. Lande, 75 Misc 3d 269, 297 (Sup Ct. NY Co. 2022) (Personal animus toward plaintiff provides further circumstantial evidence of actual malice. While the sort of actual malice required under The New York Times cases is different than the common law concept of malice as "an evil intent or a motive arising from spite or ill will . . . such motivations are not irrelevant to the actual malice inquiry" [Kipper, 12 NY3d at 354 n. 4]).

Background on New York's "Anti-SLAPP" Law

In 1992, the New York State Legislature enacted a statute intended to deter Strategic Lawsuits Against Public Participation. Gottwald v. Sebert, 40 NY3d 240, 250 (2023). See Civil Rights Law § 76-a and § 70-a. As relevant here, former Civil Rights Law § 76-a (1) (a) provided: "An 'action involving public petition and participation' is an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission." These lawsuits, often referred to by their acronym "SLAPP," are "characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future" and are strategically utilized to "intimidate or silence those who speak out." 600 W. 115th St. Corp, supra, at 145 n.1. The statute is commonly referred to as New York's "Anti-SLAPP" law.

The initial iteration of the law, however, proved to be too narrow, only applying to "cases initiated by persons or business entities [ . . . ] embroiled in controversies over a public application or permit, usually in a real estate development situation." Aristocrat Plastic Surgery, P.C. v. Silva, 206 AD3d 26, 28 (1st Dept. 2022) (citing 2019 Legis. Bill Hist. NY S.B. 1458). In response, the legislature amended New York's Anti-SLAPP law in 2020 ("2020 Amendment") to broaden its scope and "afford greater protections to citizens facing litigation from their public petition and participation" than the original 1992 law provided. Civil Rights Law § 76-a; Mable Assets v. Rachmanov, 192 AD3d 998, 1000 (2d Dept. 2021). The 2020 Amendment serves to combat and deter lawsuits that are brought for the purpose of "chilling speakers' public participation." Coleman, supra, at 261.

The amendments contained in Civil Service Law § 76 (a) broaden the definition of a SLAPP suit to include "(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) 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' " Tcharnyi v Mendez, 221 AD3d 930, 931 ( 2d Dept 2023) quoting Civil Rights Law § 76-a [1] [a] [1], [2]). See, Moonbeam Gateway, supra, 239 AD3d at 966; Reeves, supra, 232 A.D3d at 17. The statute provides that the term "public interest" "shall be construed broadly, and shall mean any subject other than a purely private matter" (Civil Rights Law § 76-a [1] [d]; see Gottwald, supra, 40 NY3d at 257; Tsamasiros v Jones, 232 AD3d 816, (2d Dept 2024); Nelson v. Ardrey, 231 AD3d 179, 184 (2d Dept. 2024); VIP Pet Grooming Studio, supra, at 83. Simply put, the 2020 amendment expanded anti-SLAPP protections to cover all "public communications on any private matter." Reeves v. Assn. Newspapers, Ltd., 232 AD3d 10, 18 (1st Dept. 2024).

In analyzing the breadth of New York's anti-SLAPP statute, courts have noted that "[m]atters of public concern include matters of political, social, or other concern to the community, even those that do not affect the general population." Aristocrat Plastic Surgery, P.C., supra, at 29 (quoting Kesner v. Buhl, 590 F. Supp. 3d 680 (S.D.NY 2022). Further, "public interest" has been defined in the "most liberal and far-reaching terms" and includes "all types of factual, educational, and historical data, or even entertainment and amusements, concerning interesting phases of human activity in general." Carey v. Carey, 2022 NY Misc. LEXIS 675 (Sup. Ct, NY Co. 2022) citing De Gregorio v. CBS, Inc., 123 Misc 2d 491, 493 (Sup. Ct, NY Co.1984). Given the "extremely broad" interpretation of the term public interest, cases in which the subject matter at issue was not a matter of public interest are "extremely rare." Lindberg v. Dow Jones & Co., 2021 U.S. Dist. LEXIS 151397 (S.D.N.Y 2021) (quoting Albert v. Loksen, 239 F.3d 256, 269 [2d Cir., 2001]).

In contrast, the small percentage of statements and subjects that are categorized as "purely private matter[s]" that do not receive the protection of New York's anti-SLAPP statute are those that fall "into the realm of mere gossip and prurient interest." Tsamasiros v. Jones, 232 AD3d 816 (2d Dept. 2024) (quoting Huggins v. Moore, 94 NY2d 296, 303 (1999); Aristocrat Plastic Surgery, P.C., supra, at 30. Additionally, statements are not of public interest when they are directed "only to a limited, private audience." Nelson v. Ardrey, 231 AD3d 179 (2d Dept. 2024) (limited personal Facebook post concerning birthday of plaintiff's daughter and not on a forum devoted to a broader scope) See, Tsamasiros, supra (letter distributed to Club members concerned purely private matters— i.e., defendant's response was to plaintiff's allegations of wrongdoing against defendant, his parents and club's leadership).

Civil Service Law § 76-a (2) has always provided that in an anti-SLAPP action, "damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false where the truth or falsity of such communication is material to the cause of action at issue" (emphasis added). While the statute itself does not use the term "actual malice," the definition used in the statute (i.e., "knowledge of [a statement's] falsity or with reckless disregard of whether it was false") has been consistently used to define "actual malice" by both federal and state courts and in cases applying the anti-SLAPP law. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); Gottwald, supra, at 251; InkMango, Inc. v. Warren, 243 AD3d 476 (1st Dept. 2025) (acknowledging the language in Section 76-a as the definition of "actual malice").²

Motions to Dismiss Under the Anti-SLAPP Statute: CPLR 3211 (g)

SLAPP "simplified a defendant's burden of showing under a CPLR 3211(7) motion that the action" that the action should be dismissed. Reeves v. Associated Newspapers, Ltd., 232 AD3d 10, 18-19 (1st Dept. 2024), leave to appeal dismissed, 44 NY3d 990 (2025). If a defendant can show that a statement involves an issue of public interest, then the anti-SLAPP statute does apply, and the standard for a motion to dismiss is then governed by CPLR 3211 (g), which is "an accelerated summary dismissal procedure. Reeves, supra 232 AD3d at 11-12. See also Kohler v. West End 84 Units LLC, 241 AD3d 1123, 1125 (1st Dept. 2025) .

Once a defendant establishes that the action involves public petition and participation, the plaintiff is "obligated to demonstrate that the causes of action alleged have a 'substantial basis in law' "Mable Assets, LLC v Rachmanov, 192 AD3d 998, 1000 (2d Dept.2021) quoting CPLR 3211 [g]) (emphasis added). See, Moonbeam Gateway, supra, 239 AD3d at 966. If a defendant (the publisher of the statement) cannot establish that the alleged defamatory statement involves an issue of public interest, then the anti-SLAPP statute does not apply, and the motion to dismiss proceeds under the ordinary CPLR 3211 (a) (7) standard. See Miller v. Appadurai, 214 AD3d 455, 456 (1st Dept. 2023). See also Ziger LLC v. Bucher Law PLLC, 238 AD3d 687 (1st Dept, 2025). If the defendant establishes that the statement at issue involves the public interest, the motion to dismiss shall be granted unless the party responding to the motion (i.e. the person who brought the defamation suit—plaintiff) 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." CPLR 3211 (g) (1). Importantly, and in contrast to an ordinary CPLR 3211 (a) (7) motion to dismiss, under CPLR 3211 (g)(2), "the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the action or defense is based.' " Omansky v. Tribeca Citizen LLC, 2022 NY Misc. LEXIS 5795 (Sup. Ct. Kings County 2022)³

In both VIP Pet Grooming Studio, Inc., supra, and Moonbeam Gateway Mar., LLC v. Tai Chan, supra, the Second Department set forth the proper framework for the analysis of a motion to dismiss under CPLR 3211 (g). While the initial burden of establishing that the action involves public interest or participation lies with the defendant (the declarant of the statement), after that burden is met, "the burden shift[s] to the plaintiff (the focus of the defamatory statement) to demonstrate that the [defamatory] causes of action had a substantial basis in law," i.e. that defendant's statement was made "with knowledge of its falsity or with reckless disregard of whether it was false," meaning actual malice. VIP Pets, supra, 224 AD3d at 83-84. Moonbeam, supra, 239 A.D. at 967 citing Reeves v. Assoc. Newspapers, LTD., 232 A.D 3d 10, 12, 18-19 (2d Dept.2024).

Therefore, the template for a motion to dismiss is under CPLR 3211(g) is flipped on its face. Reeves, supra, 232 AD3d at 16. Rather than affording all deference to the facts as pled in the complaint and placing the burden on defendant to prove that dismissal is warranted under the traditional motion to dismiss pursuant to CPLR 3211(7), here, it is the plaintiff who must meet a very high hurdle. In the anti-SLAPP context, after the defendant shows that his words involved public petition and participation, the actual burden of proof as to the action's meritoriousness shifts immediately to the plaintiff. VIP Pet, supra, 224 AD3d at 84-85 (2d Dept. 2024). Thus, a motion to dismiss a SLAPP suit alleging defamation is to be more readily granted than a motion to dismiss other claims so as to protect defendants from actions involving public petition and participation. Id.

There has been some confusion as to whether the "clear and convincing standard" or the "substantial basis in law" standard is appropriate in assessing the adequacy of plaintiff's pleading on a pre-answer motion to dismiss pursuant to CPLR 3211g. Compare Zeitlin v Cohan, 220 AD3d 631 (1st Dept. 2023) citing Smartmatic USA Cor. V. Fox Corp., 213 AD3d 512 (1st Dept. 2023); Ludlow Food, LLC v. L.E.S. Dwellers, Inc. 176 AD3d 434 (2019); Smith v. Misale, 2022 NY Misc. LEXIS 81671 (Sup. Ct, Kings County, 2022); Dugan v. Berini, 2022 NY Misc. LEXIS 6716 n.3 (Sup. Ct, Kings County, 2022) .(all requiring substantial basis in law) with Sackler v. American Broadcasting Cos., Inc., 71 Misc 3d 693 (Sup. Ct, NY Co. 2021); Honig v. Buhl, 2025 NY Misc. LEXIS 3638 (Sup. Ct, NY Co. 2025); 309 10th Owner LLC v. Trautmann, 2025 NY Misc. LEXIS 6859 (Sup. Ct, Kings County, 2025) (all requiring "clear and convincing evidence").

This confusion has apparently arisen because SLAPP motions involve three statutes—one that only discusses the substantive actions that lead to liability and damages, one that discusses sets forth expedited procedures under a motion to dismiss, and the third that discusses attorney fees. Civil Rights Law § 76(a) entitled "actions involving public petition and participation: when actual malice to be proven" does not address what standard of proof must be shown by plaintiff to defeat a SLAPP motion to dismiss, but provides that in order to recover damages, a plaintiff must establish by "clear and convincing evidence" that any communication which gives rise to the action was made knowledge of its falsity. CPLR 3211(g) provides that where the moving party has demonstrated that the action, claim, ...is an action involving public participation or petition as defined in Civil Rights Law § 76(a), the motion to dismiss shall be granted unless the party responding to the motion demonstrates that his cause of action"has a substantial basis in law." To add to the seeming confusion, Civil Rights Law § 70-a, entitled "involving public petition and participation; recovery of damages" provides in subsection 1(a) that a defendant may recover costs and attorney fees upon showing that the defamation lawsuit was commenced and continued "without a substantial basis in fact and law."⁴

The Second Department has never explicitly clarified which burden plaintiff has to meet at the motion to dismiss stage in an anti-SLAPP action in establishing that he has a cause of action in defamation, perhaps rightly so, given the aforementioned statutes. It has always found that plaintiff had to establish that his defamation cause of action had a substantial basis in law whereas in order to recover damages he had to establish by "clear and convincing evidence that any communication that defendant made which gave rise to the cause of action was made with knowledge of falsity or with reckless disregard of whether it was false." Moonbeam, supra, 239 AD. 3d at 966. See, Civil Rights Law § 76-a2; Mable Assets, supra, 192 AD3d at 1001. Therefore, the Second Department has clearly delineated plaintiff's burdens of proof on whether the plaintiff is establishing the viability of his cause of action for defamation as opposed to whether he is entitled to damages. This makes sense, as a plaintiff cannot establish damages at a motion to dismiss stage.

The First and Fourth Departments, on the other hand, have specifically rejected that a plaintiff, in opposing a motion to dismiss under SLAPP, had to meet a higher pleading standard of "proving by clear and convincing evidence" that the statement was made with actual malice.Rather, in opposing a motion to dismiss under CPLR 3211(g), a plaintiff need only establish a "substantial basis in law" for his claim of actual malice, similar to his allegations satisfying the elements of a regular defamation claim, and not "clear and convincing evidence" of actual malice. Zeitlin v. Cohan, 220 AD3d 631, 632 (1st Dept. 2023); Vitagliano v. Weiner, 237 AD3d 1548, 1549 (4th Dept. 2025). As both cases arose at the motion to dismiss stage, neither court discussed what burden of proof plaintiff had to meet to obtain damages. However, the First Department has explicitly stated that clear and convincing evidence "is the burden of proof at trial." Reeves, v. Found for the Child Victims of the Family Cts., 246 AD3d 542 (1st Dept. 2026).

This court finds that the Second Department is implicitly in accord with the First and Fourth Departments' holdings that a plaintiff who opposes a motion to dismiss under CPLR 3211(g) need only establish a "substantial basis in law" for his claim of actual malice, which is similar to a plaintiff's burden in satisfying the elements of a regular defamation claim, and not "clear and convincing evidence" of actual malice. Zeitlin v. Cohan, 220 AD3d 631, 632 (1st Dept. 2023); Vitagliano v. Weiner, 237 AD3d 1548, 1549 (4th Dept. 2025). This court agrees that the "clear and convincing evidence" standard is the burden plaintiff must prove at trial in order to obtain damages," which is why that standard is included in Civil Rights Law § 76-a for proving damages, and that "on a motion to dismiss in an action involving public petition and participation, a plaintiff need only demonstrate that the claim 'has a substantial basis in law.' " See Reeves v. Found. for the Child Victims of the Family Courts, 246 AD3d 542, 543 (1st Dept 2026).

Substantial Basis in Law

The First Department has held that, under CPLR 3211 (g), a "substantial basis in law" is, "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Reeves v. Associated Newspapers, Ltd., supra, at 22. In performing this analysis, the First Department was guided by CPLR 3211(h), which contains the same requirement of a "substantial basis in law" on a motion to dismiss. The First Department there held that "[a] careful reading of CPLR 3211 reveals that the phrase 'substantial basis in law' appears both in CPLR 3211 (g) and in CPLR 3211 (h)." Id. It further concluded that "[c]onstruction of the term 'substantial basis' under CPLR 3211 (h) thus informs the meaning of the same term under CPLR 3211 (g)." Id. The First Department in Reeves also noted that it would be illogical to find "that the Legislature would employ the same phrase twice in the same statute but intend for it to have different meanings." Id. The Second Department has utilized the same definition of the term "substantial basis in law" under CPLR 3211 (h), but it has not yet explicitly applied that definition to CPLR 3211 (g). Schmitt v. Spector, 129 AD3d 1052, 1053 (2d Dept. 2015); see also Golby v. N & P Engrs. & Land Surveyor, PLLC, 185 AD3d 792, 793-794 (2d Dept. 2020).

The "substantial basis in law" standard under CPLR 3211 (g) is more demanding than the standard applicable to an ordinary CPLR 3211 (a) (7) motion to dismiss and has been equated to the "substantial evidence" standard under CPLR 3211 (h), which in turn has been equated to the standard of a typical summary judgment motion, and this court is thus required to, "look beyond the face of the pleadings" to determine whether the claim is supported by a substantial basis in law. Reeves v. Associated Newspapers, Ltd., supra, at 23-24; see also Black v. Ganieva, 236 AD3d 427, 428 (1st Dept. 2025). A motion to dismiss under CPLR 3211 (g) is "analogous to an accelerated summary judgment motion" and therefore requires this court to determine whether there are triable issues of material fact. Reeves v. Associated Newspapers, Ltd., supra, at 24; Glen Harbor Holdings at 968, LLC v. Wiener, 2025 NYLJ LEXIS 396 (Sup. Ct, Suffolk County, 2025). See, Moonbeam, supra, where the court found that plaintiff established that his claim alleging defamation per se had a "substantial basis in law" since defendant's comments that plaintiff "is engaged in money laundering" did not constitute pure nonactionable opinion and that plaintiff was incorporated in Nevada signaled a fact unknown to the listener, and since the complaint alleged that defendant had acted with actual malice.

ANALYSIS

Firstly, it should be noted that online review forums such as Google and Houzz have consistently been held to be public forums under New York's anti-SLAPP law. See Biagini Realty v. Brightman, 244 AD3d 1173, 1176 (2d Dept. 2025); Aristocrat Plastic Surgery, P.C., supra, at 30-32; Coleman, supra, at 265. This is in line with set precedent holding that social media platforms like LinkedIn, Facebook, and Twitter constitute public forums under New York's anti-SLAPP statute. Stiloski v. Wingate, 241 AD3d 958, 961 (2d Dept. 2025); Nelson v. Ardrey, 231 AD3d 179, 185 (2d Dept. 2024); Aristocrat Plastic Surgery, P.C. v. Silva, 206 AD3d 26, 31 (1st Dept. 2022) (citing Center for Med. Progress v. Planned Parenthood Fedn. of Am., 551 F. Supp. 3d 320, 332 [S.D. NY 2021]).

Secondly, the parties concede and this court holds that defendant has met his burden of establishing that his statements concern a matter of public interest given the "extremely broad" application of the term in the context of New York's anti-SLAPP law. The statements are of interest to members of the community who may consider buying or renting an apartment at 120 Java Street. The reviews do not discuss a "purely private matter." Because the reviews were made in a public forum and concern a matter of public interest, New York's anti-SLAPP law and its corresponding motion to dismiss procedure under CPLR 3211(g) outlined above apply.

The court also finds that plaintiff has met its burden of establishing that it has a substantial basis in law for its claims. To establish a substantial basis in law for defamation, plaintiff must present "such relevant proof as a reasonable mind may accept as adequate to support" its claim of defamation. See Reeves v. Associated Newspapers, Ltd., supra, at 22. Plaintiff has done so by demonstrating that its association with 120 Java, LLC and Ray Steffen is sufficiently attenuated such that defendant's statement accusing it of denying the VA Loan application may be false. Plaintiff has proffered evidence to suggest that it was not the party responsible for defendant's grievances, therefore making defendant's placement of the reviews on social media implying plaintiff's involvement in the events untrue. It has also presented evidence that, while it is in very small part owned by Ray Steffen, it was not even established as a company when defendant purchased his condominium.

Additionally, the statements expose plaintiff to public contempt or ridicule in that they allege unfair treatment of a military veteran, are published to a third party without plaintiff's permission with (at least) negligence, and caused damages. They therefore qualify as defamatory. In other words, plaintiff has shown a substantial basis in law for its defamation claim.

On the other hand, defendant has presented sufficient evidence to establish that the content of his reviews is substantively true and that there is a connection between defendant and 120 Java LLC and Ray Steffens. However, the court need not determine at this juncture the actual relationship between defendant and 120 Java LLC, and hence the truth or falsity of the statements, since plaintiff has not met its burden of establishing a substantial basis in law for its allegation of defendant's actual malice, as required to defeat a motion to dismiss under CPLR 3211 (g). This court previously granted limited discovery regarding plaintiff's relationship with 120 Java, LLC in an order dated February 21, 2025, and the subsequent discovery establishes that defendant was not acting with knowledge that the assertions made in his reviews were false or with reckless disregard for their truthfulness. In plaintiff's response to defendant's request for admission, plaintiff admitted that: (1) Ray Steffen is a member of both plaintiff and 120 Java, LLC; (2) three images defendant attached as exhibits to his motion discussing the building at 120 Java Street were included on plaintiff's website at some point in the past, and; (3) all three of those references to 120 Java Street were later removed by plaintiff.

Defendant left his reviews on plaintiff's Google and Houzz pages after diligent pedestrian online research. He affirmed that, after reading the contract for the purchase of the condominium between himself and 120 Java, LLC (which named Ray Steffen as manager of 120 Java, LLC), he searched online for 120 Java, LLC but could not find any information on the company. After broadening his search by searching for his building's address, he discovered plaintiff's website, which, as previously mentioned, included clear and direct references to the 120 Java Street building. Further research led defendant to discover that Ray Steffen was corporately affiliated with plaintiff. Defendant then left the two reviews.

This court is permitted to use circumstantial evidence in order to interpret the subjective mind state of defendant to analyze actual malice. Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 668 (1989). This evidence may include, among other things, "the defendant's own actions or statements, the dubious nature of his sources, [and] the inherent improbability of the story." Celle, supra, at 183. This court fails to see how, based on the information available to him, that defendant could have possibly been acting with reckless disregard for the truth, much less knowledge that his statements were false. Plaintiff's own website reflected an apparent affiliation between itself and the building at 120 Java Street. Further, given that 120 Java, LLC did not have an online presence, defendant fairly assumed that plaintiff's page was the next most appropriate page to leave his reviews.

While in its previous analysis the court ruled that defendant's statements constituted defamation for purely technical reasons, the court also acknowledges that defendant's statements specifically on those online review pages appear to have been the result of an honest mistake and that defendant left his reviews on plaintiff's pages after a good faith attempt to find the correct pages to leave such reviews. The information available to defendant at the time he left his reviews is sufficient for this court to rule that he was not "highly aware" that his statements were false, and thus that they were not made with actual malice. This court too chooses to err on the side of non-actionability in this case so as to promote the public's right to free speech.

Defendant Is Awarded Attorney Fees

As previously mentioned, upon the granting of a CPLR 3211 (g) motion to dismiss, the awarding of costs and attorney fees is required. Civil Rights Law § 70-a (1) (a); see also Reeves v. Associated Newspapers, Ltd., supra, at 12. Defendant is therefore entitled to his reasonable attorney fees and costs in defending this action. However, this court declines to grant punitive or compensatory damages to defendant, since as stated above, the issue of damages only comes into play after a trial. The parties are referred to Part 82 to appear before a Judicial Hearing Officer for a determination of attorney fees and costs defendant is owed for the defense of this action.

Dated: August 11, 2026

Hon. Katherine A. Levine, J.S.C.

FOOTNOTES

1.   He also seeks an award of attorney fees and an assessment of punitive damage against plaintiff for $500,000.

2.   Additionally, Civil Rights Law § 70-a was amended to mandate, rather than merely permit, the recovery of costs and attorneys' fees upon demonstration "that the action involving public petition and participation was commenced ...without a substantial basis in fact and law and could not be supported by a substantial argument for extension, modification or reversal of existing law" (NY Civ Rights Law § 70-a[1][a]) (emphasis added). Trump v Trump, 79 Misc 3d 866, 874 (Sup. Ct NY Co. 2023). This serves as "a deterrence against those who flagrantly spew out worthless and baseless lawsuits and hold them accountable for the actual out-of-pocket financial pain and suffering inflicted on" defendants who are forced to defend those lawsuits. Swiezy v. Investigative Post, Inc., 2025 NY Slip Op 51507(U), *8. 87 Misc 3d 1209(A) (Sup Ct, Erie County 2025). Both compensatory and punitive damages may be available to a defendant if they can show that the initial action against them was initiated "for the sole purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights." Civil Right Law § 70-a (1) (b), (c).

3.   CPLR 3211(g) was amended in conjunction with related amendments to Civil Rights Law §§ 70-a and 76-a. See n. 2 supra.

4.   See n. 2supra.

Katherine A. Levine, J.