NY State Senate Bill 2019-S52

Senate Bill S52

Signed By Governor

2019-2020 Legislative Session

Requires awarding of costs and attorney fees in frivolous action involving public petition and participation

download bill text pdf

Archive: Last Bill Status Via A5991 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Nov 10, 2020	signed chap.250
Oct 30, 2020	delivered to governor
Jul 22, 2020	returned to assembly passed senate 3rd reading cal.757 substituted for s52a
Jul 22, 2020	substituted by a5991a
Jul 21, 2020	ordered to third reading cal.757
Jul 20, 2020	reported and committed to rules
Apr 17, 2020	print number 52a
Apr 17, 2020	amend (t) and recommit to codes
Jan 08, 2020	referred to codes
Jan 09, 2019	referred to codes

Votes

- Jul 22, 2020 - Floor Vote
  A5991
  
  57
  
  Aye
  
  3
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jul 22, 2020
      
      aye (57)
      
      Addabbo Jr.
      
      Akshar
      
      Bailey
      
      Benjamin
      
      Biaggi
      
      Borrello
      
      Boyle
      
      Breslin
      
      Brooks
      
      Carlucci
      
      Comrie
      
      Felder
      
      Funke
      
      Gallivan
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Griffo
      
      Harckham
      
      Helming
      
      Hoylman-Sigal
      
      Jackson
      
      Jordan
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      LaValle
      
      Lanza
      
      Little
      
      Liu
      
      Martinez
      
      May
      
      Mayer
      
      Metzger
      
      Montgomery
      
      Myrie
      
      Parker
      
      Persaud
      
      Ramos
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Seward
      
      Skoufis
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
      
      nay (3)
      
      Amedore
      
      O'Mara
      
      Ortt
  Jul 21, 2020 - Rules Committee Vote
  S52
  
  18
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jul 21, 2020
      
      aye (18)
      
      Benjamin
      
      Breslin
      
      Comrie
      
      Gianaris
      
      Griffo
      
      Hoylman-Sigal
      
      Kennedy
      
      Krueger
      
      LaValle
      
      Lanza
      
      Little
      
      Liu
      
      Ortt
      
      Parker
      
      Robach
      
      Savino
      
      Seward
      
      Stewart-Cousins
      
      aye wr (1)
      
      Martinez

Bill Amendments

Original

A (Active)

2019-S52 - Details

Law Section:: Civil Rights Law
Laws Affected:: Amd §§70-a & 76-a, Civ Rts L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S7280
2015-2016: S1638
2017-2018: S68, S2183

2019-S52 - Summary

Requires awarding of costs and attorney fees in frivolous actions involving public petition and participation; expands application of actions involving public petition and participation.

2019-S52 - Sponsor Memo

                                
 
BILL NUMBER: S52

SPONSOR: HOYLMAN
 
TITLE OF BILL:  An act to amend the civil rights law, in relation to
actions involving public petition and participation

 
PURPOSE OF BILL:

The purpose of this bill is to extend the protection of New York's
current law regarding Strategic Lawsuits Against Public Participation
("SLAPP suits"). The amendment will protect citizens' from frivolous
litigation that is intended to silence their exercise of the rights of
free speech and petition about matters of public concern.

 
SUMMARY OF PROVISIONS OF BILL:

Section 1 of the bill would amend section 76-a of the Civil Rights Law
to define an "action involving public petition and participation" to
include a claim related to:

i. Any communication in a place open to the public or a public forum in

connection with an issue of public concern; or

ii. Any other lawful conduct in furtherance of the exercise of the
constitutional right of free speech in connection with an issue of
public concern, or in furtherance of the exercise of the constitutional
right of petition.

Section 2 of the bill would amend section 70-a of the Civil Rights Laws
to provide that costs and attorney's fees "shall be recovered upon a
demonstration that a SLAP? suit was commenced or continued without a
substantial basis in fact or law and could not be supported by a
substantial argument for the extension, modification, or reversal of
existing law."

 
JUSTIFICATION:

Section 76-a of the Civil Rights Law was originally enacted by the
Legislature to provide "the utmost protection for the free exercise or
speech, petition, and association rights, particularly where such rights
are exercised in a public forum with respect to issues of public
concern." L. 1992 Ch. 767. However, as drafted, and as narrowly inter-
preted by the courts, the application of Section 76-a has failed to
accomplish that objective. In practice, the current statute has been
strictly limited to cases initiated by persons or business entities that
are embroiled in controversies over a public application or permit,
usually in a real estate development situation. Meanwhile, many frivo-
lous lawsuits are filed each year that are calculated solely to silence
free speech and public participation, which do not specifically arise in
the context of the public "permit" process. By revising the definition
of an "action involving public petition and participation," this amend-
ment to Section 76-a will better advance the purposes that the Legisla-
ture originally identified in enacting New York's anti-SLAPP law.

Additionally, the principal remedy currently provided to victims of
SLAPP suits in New York is almost never actually imposed. The courts
have failed to use their discretionary power to award costs and attor-
ney's fees to a defendant found to have been victimized by a frivolous
lawsuit intended only to chill free speech. By an award of costs and
fees, the Legislature had originally intended to address "threat of
personal damages and litigation costs ... as a means of harassing,
intimidating, or punishing individuals, unincorporated associations,
not-for-profit corporations and others who have involved themselves in
public affairs." L. 1992 Ch. 767. This amendment to Section 70-A of the
Civil Rights Law makes clear that a court "shall" impose an award of
costs and fees, but only if the court finds that the case has been
initiated or pursued in bad faith.  Together, the two amendments will
protect citizens against the threat -- and financial reality -- of
abusive litigation, but will not discourage meritorious litigation.

 
LEGISLATIVE HISTORY:

S.0068 of 2017-2018 (Hoylman): Died in Codes
S.1638 of 2015-2016 (Espaillat): Died in Codes
A.258 of 2015-2016 (Weinstein); Passed Assembly
S.7280 of 2014 (Espaillat): Died in Rules

A.856 of 2013-2014 (Weinstein): Passed Assembly
A.10594 of 2012 (Weinstein): Died in Judiciary

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
Immediately.

2019-S52 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    52
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the civil rights law, in relation to  actions  involving
   public petition and participation

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (a) of subdivision 1 of section 70-a of the civil
 rights law, as added by chapter 767 of the laws of 1992, is  amended  to
 read as follows:
   (a)  costs  and attorney's fees [may] SHALL be recovered upon a demon-
 stration, INCLUDING AN ADJUDICATION PURSUANT TO SUBDIVISION (G) OF  RULE
 THIRTY-TWO  HUNDRED ELEVEN OR SUBDIVISION (H) OF RULE THIRTY-TWO HUNDRED
 TWELVE OF THE CIVIL PRACTICE LAW AND RULES, that  the  action  involving
 public  petition  and participation was commenced or continued without a
 substantial basis in fact and law  and  could  not  be  supported  by  a
 substantial  argument  for  the  extension,  modification or reversal of
 existing law;
   § 2. Subdivision 1 of section 76-a of the civil rights law,  as  added
 by chapter 767 of the laws of 1992, is amended to read as follows:
   1. For purposes of this section:
   (a)  An  "action  involving  public petition and participation" is [an
 action,] A 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, chal-
 lenge or oppose such application or permission] BASED UPON:
   (1) ANY COMMUNICATION IN A PLACE OPEN TO THE PUBLIC OR A PUBLIC  FORUM
 IN CONNECTION WITH AN ISSUE OF PUBLIC CONCERN; OR
   (2)  ANY  OTHER  LAWFUL  CONDUCT IN FURTHERANCE OF THE EXERCISE OF THE
 CONSTITUTIONAL RIGHT OF FREE SPEECH  IN  CONNECTION  WITH  AN  ISSUE  OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD04075-01-9

 S. 52                               2
 
 PUBLIC  CONCERN, OR IN FURTHERANCE OF THE EXERCISE OF THE CONSTITUTIONAL
 RIGHT OF PETITION.
   (b)  ["Public  applicant  or  permittee" shall mean any person who has
 applied for or obtained a permit, zoning change, lease, license, certif-
 icate or other entitlement for use or permission to act from any govern-
 ment body, or any person with an  interest,  connection  or  affiliation
 with  such  person  that  is  materially  related to such application or
 permission] "CLAIM" INCLUDES ANY LAWSUIT, CAUSE OF ACTION,  CROSS-CLAIM,
 COUNTERCLAIM, OR OTHER JUDICIAL PLEADING OR FILING REQUESTING RELIEF.
   (c)  "Communication"  shall mean any statement, claim, allegation in a
 proceeding, decision, protest, writing, argument,  contention  or  other
 expression.
   [(d)  "Government  body"  shall  mean any municipality, the state, any
 other political subdivision or agency of such, the  federal  government,
 any  public  benefit  corporation,  or  any  public authority, board, or
 commission.]
   § 3. This act shall take effect immediately and shall apply to actions
 commenced on or after such date.

co-Sponsors

2019-S52A (ACTIVE) - Details

Law Section:: Civil Rights Law
Laws Affected:: Amd §§70-a & 76-a, Civ Rts L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S7280
2015-2016: S1638
2017-2018: S68, S2183

2019-S52A (ACTIVE) - Summary

Requires awarding of costs and attorney fees in frivolous actions involving public petition and participation; expands application of actions involving public petition and participation.

2019-S52A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S52a                REVISED 07/22/2020

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the civil rights law, in relation to actions involving
public petition and participation; and to amend the civil practice law
and rules, in relation to stay of proceedings

 
PURPOSE OF BILL:

The purpose of this bill is to extend the protection of New York's
current law regarding Strategic Lawsuits Against Public Participation
("SLAPP suits"). The amendment will protect citizens' exercise of the
rights of free speech and petition about matters of public interest.

 
SUMMARY OF PROVISIONS OF BILL:

Section 1 of the bill would amend section 70-a of the Civil Rights Laws
to provide that costs and attorney's fees "shall be recovered upon a
demonstration that a SLAPP suit was commenced or continued without a

substantial basis in fact or law and could not be supported by a
substantial argument for the extension, modification, or reversal of
existing law."

Section 2 of the bill would amend section 76-a of the Civil Rights Law
to define an "action involving public petition and participation" to
include a claim related to:

i. Any communication in a place open to the public or a public forum in
connection with an issue of public interest; or ii. 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 furth-
erance of the exercise of the constitutional right of petition. The bill
also specifies that "public interest" should be broadly construed.

Section 3 of the bill contains a stay of discovery and pending hearings
or motions once a motion to dismiss a SLAPP action has been made pursu-
ant to CPLR 3211 (a)(7).

Section 4 specifies that the act shall take effect immediately.

 
JUSTIFICATION:

Section 76-a of the Civil Rights Law was originally enacted by the
Legislature to provide "the utmost protection for the free exercise or
speech, petition, and association rights, particularly where such rights
are exercised in a public forum with respect to issues of public
concern." L. 1992 Ch. 767. However, as drafted, and as narrowly inter-
preted by the courts, the application of Section 76-a has failed to
accomplish that objective. In practice, the current statute has been
strictly limited to cases initiated by persons or business entities that
are embroiled in controversies over a public application or permit,
usually in a real estate development situation. By revising the defi-
nition of an "action involving public petition and participation," this
amendment to Section 76-a will better advance the purposes that the
Legislature originally identified in enacting New York's anti-SLAPP law.
This is done by broadly widening the ambit of the law to include matters

of "public interest", which is to be broadly construed, e.g. anything
other than a "purely private matter".

Additionally, the principal remedy currently provided to victims of
SLAPP suits in New York is almost never actually imposed. The courts
have failed to use their discretionary power to award costs and attor-
ney's fees to a defendant found to have been victimized by actions
intended only to chill free speech. By an award of costs and fees, the
Legislature had originally intended to address "threat of personal
damages and litigation costs . . . as a means of harassing, intimidat-
ing, or punishing individuals, unincorporated associations, not-for-pro-
fit corporations and others who have involved themselves in public
affairs." L. 1992 Ch. 767. This amendment to Section 70-A of the Civil
Rights Law makes clear that a court "shall" impose an award of costs and
fees, but only if the court fords that the case has been initiated or
pursued in bad faith. Together, the two amendments will protect citizens
by encouraging only meritorious litigation.

 
LEGISLATIVE HISTORY:

2018:A.1413/S.68- A.Judi(ECS)/S.Codes
2018:Similar to:A.5292/S.2183- A.Cal/S.Codes
2017:Similar to:A.5292/S.2183- PA /S.Codes
2015-16: A.258/S.1638 -PA/S. Codes
2014: A.856/S.7280 - PA/S. Rules
2013: A.856 - PA
2012: A.10594 - A. Judi

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
Immediately.

2019-S52A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   52--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes  --  recommitted  to
   the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted to said committee
 
 AN  ACT  to amend the civil rights law, in relation to actions involving
   public petition and participation; and to amend the civil practice law
   and rules, in relation to stay of proceedings
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (a) of subdivision 1 of section 70-a of the civil
 rights  law,  as added by chapter 767 of the laws of 1992, is amended to
 read as follows:
   (a) costs and attorney's fees [may] SHALL be recovered upon  a  demon-
 stration,  INCLUDING AN ADJUDICATION PURSUANT TO SUBDIVISION (G) OF RULE
 THIRTY-TWO HUNDRED ELEVEN OR SUBDIVISION (H) OF RULE THIRTY-TWO  HUNDRED
 TWELVE  OF  THE  CIVIL PRACTICE LAW AND RULES, that the action involving
 public petition and participation was commenced or continued  without  a
 substantial  basis  in  fact  and  law  and  could not be supported by a
 substantial argument for the  extension,  modification  or  reversal  of
 existing law;
   §  2.  Subdivision 1 of section 76-a of the civil rights law, as added
 by chapter 767 of the laws of 1992, is amended to read as follows:
   1. For purposes of this section:
   (a) An "action involving public petition  and  participation"  is  [an
 action,]  A  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,  chal-
 lenge or oppose such application or permission] BASED UPON:
   (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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04075-04-0

 S. 52--A                            2
 
 PUBLIC INTEREST, OR IN FURTHERANCE OF THE EXERCISE OF THE CONSTITUTIONAL
 RIGHT OF PETITION.
   (b)  ["Public  applicant  or  permittee" shall mean any person who has
 applied for or obtained a permit, zoning change, lease, license, certif-
 icate or other entitlement for use or permission to act from any govern-
 ment body, or any person with an  interest,  connection  or  affiliation
 with  such  person  that  is  materially  related to such application or
 permission] "CLAIM" INCLUDES ANY LAWSUIT, CAUSE OF ACTION,  CROSS-CLAIM,
 COUNTERCLAIM, OR OTHER JUDICIAL PLEADING OR FILING REQUESTING RELIEF.
   (c)  "Communication"  shall mean any statement, claim, allegation in a
 proceeding, decision, protest, writing, argument,  contention  or  other
 expression.
   [(d)  "Government  body"  shall  mean any municipality, the state, any
 other political subdivision or agency of such, the  federal  government,
 any  public  benefit  corporation,  or  any  public authority, board, or
 commission.] (D) "PUBLIC INTEREST" SHALL BE CONSTRUED BROADLY, AND SHALL
 MEAN ANY SUBJECT OTHER THAN A PURELY PRIVATE MATTER.
   § 3. Subdivision (g) of rule 3211 of the civil practice law and rules,
 as added by chapter 767 of the laws of  1992,  is  amended  to  read  as
 follows:
   (g)  [Standards]  STAY  OF  PROCEEDINGS  AND  STANDARDS for motions to
 dismiss in certain cases involving public petition and participation. 1.
 A motion to dismiss based on paragraph seven of subdivision (a) of  this
 section,  in  which  the  moving party has demonstrated that the action,
 claim, cross claim or counterclaim subject to the motion  is  an  action
 involving  public petition and participation as defined in paragraph (a)
 of subdivision one of section seventy-six-a of  the  civil  rights  law,
 shall  be granted unless the party responding to the motion 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. The court shall grant preference in the  hearing  of  such
 motion.
   2. IN MAKING ITS DETERMINATION ON A MOTION TO DISMISS MADE PURSUANT TO
 PARAGRAPH  ONE  OF THIS SUBDIVISION, THE COURT SHALL CONSIDER THE PLEAD-
 INGS, AND SUPPORTING AND OPPOSING  AFFIDAVITS  STATING  THE  FACTS  UPON
 WHICH THE ACTION OR DEFENSE IS BASED. NO DETERMINATION MADE BY THE COURT
 ON  A MOTION TO DISMISS BROUGHT UNDER THIS SECTION, NOR THE FACT OF THAT
 DETERMINATION, SHALL BE ADMISSIBLE IN EVIDENCE AT ANY LATER STAGE OF THE
 CASE, OR IN ANY SUBSEQUENT ACTION, AND NO BURDEN OF PROOF OR  DEGREE  OF
 PROOF  OTHERWISE  APPLICABLE  SHALL BE AFFECTED BY THAT DETERMINATION IN
 ANY LATER STAGE OF THE CASE OR IN ANY SUBSEQUENT PROCEEDING.
   3. ALL DISCOVERY, PENDING HEARINGS, AND MOTIONS IN THE ACTION SHALL BE
 STAYED UPON THE FILING OF A MOTION MADE PURSUANT TO  THIS  SECTION.  THE
 STAY SHALL REMAIN IN EFFECT UNTIL NOTICE OF ENTRY OF THE ORDER RULING ON
 THE  MOTION.  THE  COURT,  ON  NOTICED  MOTION AND UPON A SHOWING BY THE
 NONMOVING PARTY, BY AFFIDAVIT OR DECLARATION UNDER  PENALTY  OF  PERJURY
 THAT, FOR SPECIFIED REASONS, IT CANNOT PRESENT FACTS ESSENTIAL TO JUSTI-
 FY  ITS  OPPOSITION,  MAY  ORDER  THAT  SPECIFIED DISCOVERY BE CONDUCTED
 NOTWITHSTANDING THIS SUBDIVISION. SUCH DISCOVERY, IF GRANTED,  SHALL  BE
 LIMITED TO THE ISSUES RAISED IN THE MOTION TO DISMISS.
   4.  FOR  PURPOSES  OF  THIS SECTION, "COMPLAINT" INCLUDES "CROSS-COMP-
 LAINT" AND  "PETITION",  "PLAINTIFF"  INCLUDES  "CROSS-COMPLAINANT"  AND
 "PETITIONER",  AND  "DEFENDANT" INCLUDES "CROSS-DEFENDANT" AND "RESPOND-
 ENT."
   § 4. This act shall take effect immediately.

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Senate Bill S52

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Brad Hoylman-Sigal