Court Applies NY’s Recently-Enhanced Anti-SLAPP Law to Dismiss Defamation Claim Asserted By Queens Doctor

In November 2020, New York Governor Andrew Cuomo signed into law an update to New York’s anti-SLAPP law that expands the rights and protections of defendants in lawsuits based on their right to free speech. “SLAPP” is an acronym for “Strategic Lawsuit Against Public Participation.”

While New York had an anti-SLAPP law on the books for some time, the recent enhancements broaden it to extend to lawsuits based on “(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.” N.Y. Civil Rights Law § 76-a.

A recent decision, Khandker, M.D. v. Haniam Maria et al, N.Y. Sup. Ct. Qns. Cty., Index No. 708671/2020 (Order dated July 23, 2021), is instructive as to how courts will apply the new law.

In that case, in sum, the plaintiff is a doctor who initiated the lawsuit against the defendants, his patients, for allegedly writing defamatory internet postings about the plaintiff (e.g., accusing the plaintiff of “sexual assault” and molestation in connection with his medical practice). Defendants submitted an Answer, in which they asserted various affirmative defenses, as well as counterclaims for sexual assault and battery, the NYC Victims of Gender-Motivated Violence Act, and gender discrimination in violation of the New York State and City Human Rights Laws.

In a short-Form Order filed July 23, 2021, N.Y. Supreme Court Justice Denis J. Butler granted defendants’ motion for summary judgment under the New York anti-SLAPP law via New York Civil Practice Law and Rules 3212(h) (a specialized rule that provides for summary judgment when asserted under NY Civil Rights Law § 76-a(1)(a)).

Justice Butler wrote:

Here, the Facebook Instagram, and Change.Org social media posts at issue satisfy the elements of NYCHRL § 76-a(1). The posts involve an issue of public interest, namely plaintiff’s actions as a physician, and plaintiff’s actions as part of the Bengali community in Queens, and, the posts are located in a place open to the public.

Defendants have established their prima facie entitlement to summary judgment, and now the burden shifts to plaintiff, who must demonstrate that the action “has a substantial basis in fact and law …”.

Plaintiff, in opposition, merely submits an attorney affirmation with no supporting affidavit from plaintiff and has therefore failed to submit admissible evidence necessary to meet his burden and defeat defendants’ cross-motion.

Accordingly, the branch of defendants’ motion seeking summary judgment pursuant to CPLR § 3212(h) is granted and the action is hereby dismissed.

The court then held that defendants were entitled to their “costs and attorneys fees incurred in defense of this action” pursuant to N.Y. Civil Rights Law § 70-a(1).

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