New York Court Applies Anti-Slapp Statute

JOOTB_FinalA New York state Appellate Court recently applied that state’s Anti-SLAPP law to strike down a lawsuit brought by a conductor on the Long Island Railroad.  The Court found the suit so meritless, it declined to allow the conductor to pursue discovery.  I wrote last week about efforts by two Ohio legislators to introduce similar legislation in Ohio.  This case is an example of how that law might work in practice. 

In January 2021, the New York Metropolitan Transit Authority held a press conference during which its chair discussed, the Steven Rosati’s suspension from his position as an assistant conductor for the Long Island Railroad due to his alleged involvement in the United States Capitol riot on January 6, 2021.  Thereafter, the defendants, a cable operator, a news network, and a publisher, published a news article and a televised news report summarizing the press conference.  Mr. Rosati commenced this action against the defendants to recover damages for defamation.

The defendants responded by invoking New York’s anti-SLAPP law.  That section of the New York law provides: “[a] motion to dismiss [based on a failure to state a claim for relief], 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 . . .  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.”

The defendants argued that the court should dismiss the action, because under New York law, a plaintiff cannot bring a defamation action on a fair and impartial report of an official proceeding.  The MTA press conference qualified as an official proceeding, meaning the defendants had a right to publish a summary.

In the face of the motion to dismiss, Rosati filed a motion to conduct discovery.  Under the New York anti-SLAPP statute, the court may allow the plaintiff can conduct discovery if the plaintiff demonstrates, “by affidavit or declaration under penalty of perjury that, for specified reasons, it cannot present facts essential to justify its opposition, may order that specified discovery be conducted.”

Here, the trial court ruled, and the appellate court affirmed, that Rosati failed to show that he was unable to present facts essential to his opposition.  Given the circumstances of the case, there were no facts that Rosati could present to avoid the dismissal.  The undisputed facts doomed his suit.

Rosati’s efforts to proceed on his defamation suit were about as successful as his attempted insurrection on January 6.  His next fight will likely be the defendants’ motion for attorney fees, where Rosati’s losing streak will likely continue. 

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Jack Greiner | Faruki Partner