Posted by: Patricia Salkin | June 25, 2014

NY Appellate Court Upholds Dismissal of Summary Judgment Motion on SLAPP Suit Involving Proposed Nonconforming Camp

The plaintiffs, Southampton Camp Realty, LLC purchased property, previously used as a tennis and racquet club, which was a nonconforming use. They planned to convert the property into a children’s day camp. They hoped that the children’s day camp would be an interchangeable nonconforming use of the property, such that they would not be required to obtain a variance. The Chief Building Inspector of the Town of Southampton, New York (“Building Inspector”) concurred with the plaintiffs. Local residents and civic organizations then filed with the Zoning Board of Appeals an “application for review” of the concurrence. They distributed a flyer suggesting that the plaintiffs had lied about the environmental impact of the proposed development. The plaintiffs commenced an action alleging, inter alia, that the statements in the flyer constituted defamation. The defendants counterclaimed that this action was a strategic lawsuit against public participation (“SLAPP suit”), as defined in Civil Rights Law §§ 70–a and 76–a, and sought an award of, inter alia, an attorney’s fee and punitive damages.

The trial court granted portions of the defendants’ motion that were for summary judgment dismissing the complaint and on the portion of the counterclaim which sought an award of an attorney’s fee, concluding that this was a SLAPP suit. The court denied the portion of the defendants’ motion that was for summary judgment on the portion of the counterclaim that sought punitive damages. Both parties appealed.

The appellate division noted that Civil Rights Law § 76–a was passed to protect citizens facing litigation arising from their public petitioning and participation by deterring strategic lawsuits against public participation, termed SLAPP suits. Civil Rights Law § 70–a, permits a defendant in such actions to recover costs and an attorney’s fee, and CPLR 3211(g) and CPLR 3212(h), which require the plaintiff, on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action or for summary judgment pursuant to CPLR 3212, to demonstrate that the action “has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.”

Here, the defendants established that the plaintiffs were public applicants and that the suit concerned a communication that was “materially related” to the defendants’ efforts to report on, comment on, or oppose the plaintiffs’ application. The plaintiffs failed to demonstrate a substantial basis in fact and law in support of their allegations that the challenged statements amounted to defamation per se, that the statements were known to be false by the defendants, or that they were made with reckless disregard for the truth. Accordingly, the trial court had properly granted that branch of the defendants’ motion that was for summary judgment dismissing the complaint. The trial court properly denied that branch of the motion which was for summary judgment on so much of the counterclaim as sought an award of punitive damages, as the defendants failed to demonstrate that this lawsuit was commenced solely to harass, intimidate, punish, or otherwise inhibit their rights to free speech, petition, or association.

Southampton Day Camp Realty, LLC v Gormon, 2014 WL 2871383 (NYAD 2 Dept 6/25/2014)

The opinion can be accessed at:

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