Wednesday, March 26, 2008

SLAPP Counterclaim Dismissed

The New York Appellate Division for the First Judicial Department affirmed a trial court order granted summary judgment on a counterclaim. The plaintiff, an attorney acting pro se, was negotiating to purchase property to store and use business jet aircraft. He "undertook an active lobbying campaign to persuade town zoning officials to enact a zoning code to permit his desired use, which efforts were aggresively opposed by defendant Long Island Pine Barrens Society." He sued the Society for defamation. The conterclaim at issue accused plaintiff of "retaliation for defendants' public advocacy and, therefore, was an improper SLAPP suit under Civil Rights Law."

The court interpreted the requirement that the SLAPP cause of action must involve a claim brought by a "public applicant or permittee." Here, plaintiff was not such a person:

"... plaintiff cannot be deemed a public applicant or permittee based upon the fact that he aggressively advocated a particular agenda directly to Town Board members and at public meetings, and took steps to commence litigation against the Town. Moreover, defendants present absolutely no evidence that plaintiff made any attempt to comply with, or initiate an application process under, the Town of Riverhead's specific procedures governing applications for zoning variances. In view of the narrow construction which must be afforded Civil Rights Law § 70-a and § 76-a, we find, as did the motion court, that merely advocating one's agenda at public meetings, or initiating legal action, does not bring an individual within the ambit of an applicant or permittee as defined in Civil Rights Law § 76-a(1)(b). "

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/03/the-new-york--2.html

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