STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA

BRUCE TANSKI

Plaintiff,

- against BRUCE RISCHERT

Defendant.

Index No.: 2012-4191

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTTON FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3212(h) AND REQUEST FOR COSTS, ATTORIIEYS' FEES AND DAMAGES PURSUANT TO CIVIL RIGHTS LAtlt $ 70-a

GREENBERG TRAURIG, LLP Michael J. Grygiel, Esq. Attorneys for Defendant Bruce Rischert 54 State St., 6th Floor Albany, New York 12207 Phone: (518) 689-1400 grygielm@gtlaw.com

TABLE OF CONTENTS
TABLE OF CONTENTS PRELIMINARY STATEMENT
STATEMENT OF FACTS.. ARGUMENT POINT I
5 5

SUMMARY JUDGMENT PROMOTES SIGNIFICANT FIRST AMENDMENT INTERESTS IN DEFAMATION ACTIONS ....

.5

A. B.
POINT

Summary Disposition of Defamation Claims Is The Rule in New York State.

Plaintiff Cannot Satisfy the Elements of a Defamation Claim Under New York State Law.

II

THE CHALLENGED STATEMENTS ARE EXPRESSIONS OF OPINION ENTITLED TO ABSOLUTE CONSTITUTIONAL PROTECTION

7
8

A.
B

The Constitutional Opinion Privilege. The New York State Constitution Affords Broader Protection to Statements of Opinion Than the Federal Constitution.................,

10

Determination of the Opinion Privilege Is a Question of Law..

The Context in Which the Statements Complained Of Were Made - In Communications to the Halfmoon Town Board Opposing Plaintifls Real Estate Development Application - Clearly Signaled That They V/ere Subjective Opinion. ............

11

I2

(1)
(2)

The Broader Social Setting of the Statements: Public Meetings of the Halfmoon Town Board........ The Immediate Context of the Statements: Ongoing Public Controversy Over the Proposed "Anna's Place" Residential Development Project.

12

..14

The "Gold Rush!" Letter Submitted to the Halfmoon Town Board Contains Nonverifiable Criticism That Constitutes Protected Opinion.

15

(1) (2)
F

The Use of Rhetorical Hyperbole and Exaggerated, Figurative Language Clearly Indicates Protected Opinion. The Word "Admits" Reinforces that Certain Statements Complained of Are Protected Expressions of Opinion..

18

21

The Oral Statement Made During the Halfmoon Town Board Meeting Is Protected By the Opinion Privilege.

21

The Statements Complained of Are Classic, Nonactionable "Pure Opinion" Based on Information in the Public Domain.....

............23

POINT III

PLAINTIFF'S RETALIATORY DEFAMATION CLAIMS CONSTITUTE A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION A ..SLAPP" SUIT - OF THAT SHOULD BE DISMISSED AS A MATTER - AND DAMAGES ARE WARRANTED LAV/; FEES, COSTS

27 27
JJ

A. B.

This is a SLAPP Action.

The Standard of Review.

(1) C.
POINT IV

The Constitutional Opinion Privilege is Dispositive of Plaintiff Defamation Claims.

34

Defendant Is Entitled to Attorneys' Fees, Costs and Damages Under the Anti-SLAPP Statute.

34

IN THE ALTERNATIVE, AN AWARD OF COSTS AND REASONABLE ATTORNEYS' FEES IS MANDATORY, NOT PERMISSIVE, TINDER CPLR 8303-A UPON A FINDING THAT AN ACTION V/AS FRIVOLOUS, AND SUCH AN AWARD IS APPROPRIATE IN THIS CASE.............................35
38

CONCLUSION

ll

PRELIMINARY STATEMENT
Freedom of discussion, tf it would fuffill its historic function in this nation, mLtst embrace all issues about which inrmation is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 u.s.88, r02 (1940).
"

Introduction

In this free speech case, Plaintiff Bruce Tanski, a politically powerful builder

and

developer, complains that he was defamed by statements made by Defendant Bruce Rischert, an

outspoken opponent
subdivision

of Plaintiffs

controversial proposal

to build a multi-unit

apartment

known as "Anna's Place"

- in the Town of Halfmoon.

More specifically, Plaintiff

alleges that certain statements in a "Gold Rush!" letter distributed by Defendant Bruce Rischert

to the Halfmoon Town Board (first cause of action), and oral remarks made by Defendant at
subsequent public meeting

of the Town Board (second cause of action), injured his reputation.

TT

(See Ex. 1

to Grygiel Aff.,

36-54)t The Complaint is frivolous in the extreme and, as

be

discussed more

fully below, an affront to basic First Amendment principles. It should

summarily dismissed to avoid any inhibition on freedom of speech, the preferred approach to the disposition of defamation cases by courts in New York State. See POINT I, infra.

Plaintiffs' defamation claims lawsuit

a transparent quest for retribution masquerading as a

betray

a fundamental

misunderstanding

of

established constitutional principles attempt

requiring dismissal

of the Complaint, His ill-advised

to impose liability

based on

Defendant's speech addressing a legitimate matter of public concern

i.e., the development

policies pursued by the Town of Halfmoon and implicated by Plaintiff s application to construct

I "_")"

ll, 2013, affidavit of Bruce Rischert, and Defendant's counsel's afflrmation of March 12, 2013, submitted in support of the instant motion for summary judgment and an award of costs, attomeys' fees and damages pursuant to CPLR 70-a(1) are referred to herein by paragraph, respectively, as "(Rische Aff.,
The March
and "(Grygiel Aff.,
1[ "

_")".

"Anna's Place"

is incompatible with the First Amendment. It ignores that the exchange of

information between citizens and local government bodies which Plaintiff seeks to transform into

the basis of a $2.5 million damages award is at the heart of our system of democratic selfgovemance, for

it

enhances the accountability

of government offrcials to the people whom

they

represent. In a nation that so highly values and so passionately protects public discourse,

it

is

difficult to conceive of a more constitutionally threatening sort of legal claim than those
espoused by Plaintiff here, which would stifle debate at the heart of the First Amendment.

Summary of Argument
Defendant respectfully submits this memorandum of law in support of his motion for
summary judgment pursuant to CPLR 3212(h) requesting dismissal of the Complaint and for an

award

of

appropriate sanctions pursuant

to Civil Rights Law $ 70-a or, in the altemative,

CPLR 8303-a. The Court should grant the motion because, as a threshold matter, the Complaint

indiscriminately challenges statements which are clearly not actionable by virtue

constitutional opinion privilege
absolute under Article

of

the

privilege which is expansive under the First Amendment, and

State

I, Section 8, of the New York

Constitution. In doing so, it ignores

the established distinction between protected expressions of opinion and potentially unprotected
assertions of

fact. See POINTS II A.-E., infra. As elaborated below, Plaintifls real quarrel with

Mr. Rischert's statements is less with any supposedly false statements of objective, verifiable
facts, and more with what he apparently thinks are unfair criticisms concerning his track record
as a builder and developer

in the community. Plaintiff is, of course, entitled to take issue with

those opinions critical of his tenant management style and of the "Anna's Place" development

proposal. What he is not entitled to do, however, is to maintain a libel and slander suit against Defendant over

them. The

statements Plaintiff has

put at issue essentially involve

disagreement over the advisability of his real estate development proposal and the propriety

of

his conduct as a landlord. As such, they are subjective evaluations and assessments of public
issues based on facts widely available in the public record

classic statements of "pure" opinion,

rather than fact, which are not actionable. See POINT

IIF., infra.

This Action Is Meritless and a SLAPP Suit; Sanctions Are Warranted

Despite a comprehensive letter from Defendant's counsel at the inception of the case delineating the reasons that the Complaint is baseless (Grygiel Aff., T "6" and Ex. 4), Plaintiff
persisted in continuing this action in complete disregard of the First Amendment's unwavering

protection of speech on public issues. The constitutional guarantee of free speech has its fullest
and most urgent application in maintaining

" 'the opportunity for free political

discussions to the

end that govement may be responsive to the

will of the people.' " New York Times Co. v.

Sullivan,376 U.S. 254,269 (1964) (quoting Strombergv. California,2S3 U.S.359,369 (1931)).

That is because "speech concerning public affairs is more than self-expression; it is the essence

of self-government." Garrison v. State of Louisiana,

379 U.S. 64, 74 (1964). Appropriate

sanctions should therefore be awarded as authorized by New York's law prohibiting Strategic

Lawsuits Against Public Participation ("SLAPP" suits).

This lawsuit runs headlong into New York's anti-SLAPP law (N.Y. Civil Rights Law
$$

70-a, 76-a), which provides specific protection against retaliatory lawsuits such as this

targeting protected commentary on matters related to public petition and participation. That
statute and related provision CPLR 3212(h) subject SLAPP suits to enhanced scrutiny, shifting

the burden and requiring Plaintiff to come forward and demonstrate a "substantial basis" in law

for his claims in order to survive a motion for summary judgment. CPLR 3212(h); Civil Rights
Law $ 70-a(1)(a). Plaintiff is unable to meet that burden here. See POINT III A., infra.

By its terms, the anti-SLAPP law expressly applies to actions which are directly related
to Mr. Rischert's commentary on the activities of Plaintiff as a "public applicant." Civil Rights

Law $ 76-a(1). The defamation claims

asserted here, designed

to punish and chill speech on

matters related to Plaintiff s controversial application to the Town of Halfmoon Planning Board

for approval to proceed with the construction of "Anna's Place," are precisely the sort the antiSLAPP statute exists to discourage. The anti-SLAPP statute also allows Defendant to recover his fees and costs, as well as compensatory and punitive damages. N.Y. Civli Rights Law $ 70-

a(l)(a)-(c). Dismissal is a remedy, but it is not enough. The free

speech principles at stake in

this litigation will only be vindicated by an award of attorneys' fees, costs, damages and/or other
sanctions pursuant to the anti-SLAPP

law. Id.
core

In the final analysis, this lawsuit blatantly disregards that the First Amendment's
values protect the free flow

of ideas on matters of public

interest and concern. Plaintifls

defamation claims proceed on a theory

of recovery that subverts constitutional free speech

principles by threatening to confine community discussion of the impact of his proposed real
estate development project within rigid boundaries

of

acceptable (as deemed

by Plaintiff)
of

language and by shifting critical evaluation of his conduct as a landlord out of the marketplace

public discourse and into the courtroom. Contrary to what Plaintiff is urging upon this Court, the

First Amendment flatly prohibits any such sanitizing of speech on public issues. His libel and
slander claims are patently frivolous, were devoid

of merit at their inception, and have been

sees as

egregiously continued standing

for the purpose of harassing an opponent who he evidently

in the way of getting his major subdivision application approved by the Town of

Halfmoon Planning Board. Plaintiffls claims not only constitute a misuse of and burden on

judicial resources, but have placed a substantial burden on Mr. Rischert in defending them. For

the reasons presented below, the Court should grant Defendant summary judgment dismissing

the Complaint in its entirety as a matter of law, along with an award of appropriate sanctions
pursuant to Civil Rights Law $ 70-a(1) or, in the alternative, pursuant to CPLR8303-a. See POINTS III B. and lY, infra.

STATEMENT OF FACTS
The relevant facts are presented in the affidavit of Defendant Bruce Rischert duly sworn

to on March

11

, 20 1 3, and submitted in support of this motion. Those facts are incorporated by

reference herein.

ARGUMENT POINT

SUMMARY JUDGMENT PROMOTES SIGNIFICANT FIRST AMENDMENT INTERESTS IN DEFAMATION ACTIONS

A.

Summary Disposition of Defamation Claims Is The Rule in New York State. New York State courts have recognized that the mere threat of being forced to defend a

defamation lawsuit may be suffrcient to inhibit the exercise of First Amendment freedoms, and therefore encourage the granting of summary judgment in such actions. Immuno AG. v. MoorJankowski, 145 A.D.2d 114, 127 (1st Dep't 1989) ("The importance of summary judgment in the

context

of libel adjudication

cannot be overemphasized."),

aff'd, 74 N.Y.2d 548

(1939)

("Immuno l'), vacated,497 U.S. 1021 (1991), aff'd on remand,77 N.Y.2d 235 ("Immuno Il'),2
cert. denied, 500 U.S. 954 (1991). See also Karaduman v. Newsday, Inc.,5l N.Y.2d 537, 545,

This policy was reiterated in Immuno /1 by the Court of Appeals in its affirmance on remand from the United States Supreme Cour1, 77 N.Y.2d at 256 (emphasis supplied) (citations omitted):

Finalfy, we retffirm our regrd

appropriate, in libel cses. Indeed, this is an additional ground for preferring the independent State law approach to one that might make summary disposition less likely.

for

the ptrtcular value of summary judgment, where

reqrg. denied,52 N.Y.2d 899 (1980) ("We must not be reluctant to apply the ordinary rules
governing summary judgment

in libel

cases."); Robart v. Post-Standard, 52 N.Y.2d 834, 843

(1981) (same); Gaeta v. New York News, Inc., 62 N.Y.2d 340, 351 (1984) (same). 'Where, as
here, the case involves claims arising out

of speech

addressing matters

of legitimate public

concern, "cherished First Amendment freedoms" are involved and the Court should be
"especially sensitive to see that summary judgment [is] granted

if

evidentiary facts sufficient to

raise a triable issue of fact are not adduced." DeLuca v. New York News, Inc., 109 Misc.2d 347, 345 (NI.Y. Co. Sup. Ct., 1981) (citations omitted).

Accordingly, with respect to defamation claims, summary judgment plays a significant role in protecting against spurious lawsuits and has particular value in countering "the chilling
effect of protracted litigation on free expression." Park v. Capital Cities Communications, Inc,,

181 A.D.2d 192, 194 (4th Dep't) (quoting Immuno AG. v. Moor-Jankowski, supra), app.
dismissed, S0 N.Y.2d 1022 (1992); Freeze Right Refri and

Air Conditioning Serv., Inc. v. City

the

of New York, 10I A.D.2d 175, 181 (lst Dep't 1984) ("courts should not be oblivious to
crippling financial burden" entailed by defense

of

defamation claims and the "consequent

chilling effect this burden can have on the dissemination" of information to the public).
Simply put, in cases involving freedom of expression, "fs]ummary judgment is the rule, not the exception." Unification Church v. Harper & Row Publishers, Inc., 101 Misc.2d 30, 34

(N.Y. Co. Sup. Ct.,1979) (emphasis supplied). Summary disposition is particularly appropriate

with respect to Plaintiffs defamation claims here because public discussion about the future
course of residential development and land use activities in the Town of Halfmoon presents the
strongest possible case for the application of First Amendment safeguards.

B.

Plaintiff Cannot Satisff the Elements of New York State Law.

a Defamation

Claim Under

The following elements are necessary to establish a cause of action for defamation under

New York

law: (1) a defamatory statement of fact

(2) that is false; (3) regarding the plaintiff;

(4) published to a third party by defendant; (5) with the requisite degree of fault; and (6) injury to the plaintiff. Meloff v. New York Life Ins. Co.,240 F.3d 138, 145 (2d Cir. 2001); Jee v. New York Post Co., 176 Misc.2d253,260 (N.Y. Co. Sup. Ct., 1998), aff d,260 A.D.2d 215 (1st Dep't),|v. to
app. denied,93 N.Y.2d 817 (1999). See generally Restatement (Second) of Torts $ 558 (1977).

The undisputed facts established in the affidavit and documentary evidence submitted by Defendant in support of this motion require the dismissal of Plaintifls defamation claims
as

a matter of law for failure to satisfy these requirements, including a threshold demonstration that

the challenged statements are factual in nature. Indeed, this case

where Defendant is

immunized from defamation liability because the statements at issue are constitutionally
protected expressions of opinion, and were therefore incapable of being published with the

constitutionally requisite degree of fault

summary judgment.

bluntly highlights the propriety of an award of

POINT

II

THE CHALLENGED STATEMENTS ARE EXPRESSIONS OF OPINION ENTITLED TO ABSOLUTE CONSTITUTIONAL PROTECTION
The Complaint disputes Defendant's statements to the Halfmoon Town Board that
are

clearly not actionable by virtue of the constitutional opinion privilege. When considered (as

they must be) in their full context, the challenged statements unquestionably present
"statements

of opinion [which] [a]re entitled to the absolute

protection

of the

State and

Federal constitutional free speechguarantees...." Immuno 11,77 N.Y.2d at239. Further,the

statements at issue are "pure opinion" based on facts widely disseminated in the public domain, and

are thus absolutely protected as a matter

of law. Under the First Amendment, "[h]owever

pernicious an opinion may seem, we depend for its correction not on the conscience of judges
and juries but on the competition

of other ideas." Gertz v. Robert Ilelch, Inc., 418 U.S.

323,

339-40 (1974). "Since opinions may not be subject to private damage actions, summary
judgment should [be] awarded" to Defendant. Millus v. Newsday, Inc.,89 N.Y.2d 840,842-43

(ree6).

A.

The Constitutional Opinion Privilege.

According to longstanding constitutional principles,

"[i]t is a settled rule that expressions

of an opinion 'false or not, libelous or not, are constitutionally protected and may not be the
subject of private damage actions.'

"

Steinhilber v. Alphonse,6S N.Y.2d 283,286 (1986) (quoting

Rinaldi v. Holt, Rinehart

&

Winston, Inc.,42 N.Y.2d 369, 380 (1977)). Under both the Federal

and New York Constitutions, only statements that are demonstrably false are actionable.
"Because falsity is a necessary element in a defamation claim involving statements of public
concem, it follows that only statements alleging facts can properly be the subject of a defamation

action." 600 W. I I5th Street Corp. v, Von Gutfeld, S0 N.Y.2d 130, 139, rearg. denied,81 N.Y.2d
759 (1992), cert, denied,508 U.S. 910 (1993). The rationale for the rigorous insistence on a distinction between fact and opinion was set

forth by the Court of Appeals both in Immuno noted that "unlike assertions

and Von Gutfeld, In the former case, the Court

a

of fact,

ideas

or opinions merit protection for their role in

competition or marketplace of ideas, as stimulants of 'uninhibited, robust and wide-open debate

on public issues.'

"

74 N.Y.2d at 556.

It continued:

In reviewing the underpinnings for the distinction between fact and opinion, moreover, it is above all important to bear in mind that the exercise is not merely one in semantics. Several courts and

commentators have criticized as inadequate any analysis that does not give central significance to the role played by the challenged statements in public debate, or to the "core value" of the free speech guarantee.

Id. at 556-57 (citations omitted). The statements at issue here relate directly to such "core value" speech at the heart of

"public debate" about a matter of public concem, a proposed multi-unit residential apartment
complex for which Plaintiff was seeking consttuction approval from the Town of Halfmoon
Planning Board

a project which Defendant opposed.

"Urging a governmental entity to take a

particular action on a pending permit application is manifestly" speech protected under the First

Amendment. Harris v, Town of Fort Ann, 35 A.D.3d 928,929 (3d Dep't 2006). See,

e.9.,

Rosenblott v. Baer,383 U.S. 75, 85 (1966) ("There is, first, a strong interest in debate on public issues, and, second,

a strong interest in

debate about those persons who are

in a position

significantly to influence the resolution of those issues."). As set forth more fully below, the
statements Plaintiff alleges are defamatory could not be understood by the reasonable reader or listener to be advanced as statements of fact. Immuno 11,77 N.Y.2d at 254 ("statements must first

be viewed in their context in order for courts to determine whether a reasonable person would

view them as expressing or implying ny facts") (emphasis in original). Rather, they are fully
protected expressions

of opinion made in the context of an ongoing community

debate over

Plaintiff

s application to proceed

with a controversial real estate development proposal. (Rischert

Aff.,

1[T

"11-15") The statements are therefore nonactionable commentary "that no reasonable

reader would have regarded (emphasis in original).

. , ., in their context,

as factual." Immuno

II,

77 N.Y.2d at 245

B.

The New York State Constitution Affords Broader Protection to Statements of Opinion Than the Federal Constitution. Supplementing the protection available

to the challenged

statements under the First and in particular, Article I,

Amendment is that provided by the New York State Constitution

Section 8

which, for statements of opinion, is broader than that required by the First Amendment. 77 N.Y.2d at 249 (citing O'Neill v. Oakgrove Construction, Inc.,

Immuno

II,

7l N.Y.2d

527,

529n.3 (1988)). Seealso600W. ll5thStreetCorp.v.VonGutfeld,S0N.Y.2dat136 (noting

that with respect to "constitutionally protected opinion," "this Court perceives the protection afforded by the First Amendment

. . and that afforded by article I, $ 8 of the New York

Constitution to be quite different"). That choice was driven by a tradition in New York of a

particularly vibrant and diverse speech marketplace, Arcara v. Cloud Books,68 N.Y.2d 553,557558 (1986), and reflected the "'sensitive role of gathering and disseminating news of public
events.'

"

O'Neill,7l N.Y.2d at 528 (citation omitted).

The State constitutional analysis examines "the content of the whole communication,
[including] its tone and apparent purpose," in order to determine whether a reasonable person
would view the statements at issue as expressing opinion or fact. Immuno 11,77 N.Y.2d a|250. New York's approach requires an analysis of the

"full

context of the challenged speech," id.

at255, whereas the Federal approach requires a determination as to whether the specifc words
express

or imply a provably false fact. Milkovich v. Lorain Journal Co., 497 U,S.

l,

20-

2r(ree0). By adopting an analysis based on the entire context of a challenged communication, the Court of Appeals has expansively construed the State constitutional opinion privilege more
broadly than its Federal counterpart so as to protect "the cherished constitutional guarantee of free speech." Immuno 11,77 N.Y.2d at250,256. "This Court has adopted

a.

. . view under our

10

own State Constitution and has embraced a test for determining what constitutes a nonactionable
statement

of opinion that is more flexible and is decidedly more protective" of free

expression.

Gross v. New York Times Co., 82 N.Y.2d 146,152 (1993). See also Ansorian v. Zimmerman,2l5

A.D.zd 614, 614 (2d Dep't 1995) ("Expressions of pure opinion are afforded greater protection under the New York State Constitution than under the Federal Constitution.") (emphasis
supplied); Levin v. McPhee, 917 F.Supp. 230,240 (S.D.N.Y. 1996) ("New York's Court of
Appeals has held that opinion receives greater protection under the New York than under the

United States Constitution.") (emphasis supplied) (citing Immuno 11,77 N.Y.2d at247-48), aff'd,
I 19 F.3d 189 (2d Cir. 1997)).

C.

Determination of the Opinion Privilege Is a Question of Law.

In determining the constitutional protection for statements of opinion involving

matters

of public concem, the dispositive inquiry under either the First Amendment or New York
constitutional law is "whether a reasonable freader]...could have concluded that [the statements

werel conveying facts about the plaintiff." Von Gutfeld, S0 N.Y.2d at 139 (citations omitted); Immuno 11,77 N.Y.2d at

243. This inquiry with

respect to the public meeting commentary

complained of here "is a question for the Court in the first instance." Von Gutfeld, supra, 139 (citations omitted). See also Mann v. Abel, 10 N.Y.3d 271,276 (2008) ("Whether a particular
statement constitutes an opinion or an objective fact is a question of law.") (citation omitted); Gross v. New York Times Co,,82 N.Y.2d at 153 (opinion privilege inquiry "must be made by the

court"); Rinaldi v. Holt, Rinehart

&

Winston, 42 N.Y.2d at 381; Kuan Sing Enterprises, Inc.

v. v.

T.W. Wang, Inc., 86 A.D.2d 549, 549-550 (lst Dep't), aff'd, 58 N.Y.2d 708 (1982); Lapar

Morris,

119

A.D.2d 635, 636 (2d Dep't 1986); Kim v. Dvorak,230 A.D.2d 286,291 (3d Dep't

1997); Feruis v, Loyal Order of Moose Oneonta Lodge No. 465,259 A.D.2d914,915 (3d Dep't),

lv. to app. dismissed,94 N.Y.2d 900 (2000); Curry v. Roman,2l7 A.D.2d374,319 (4th Dep't
11

1995), lv. to app. denied,88 N.Y.2d 804 (1996); Boulos v. Newman, 301 4.D.2d932,933 (4th Dep't 2003).

D.

The Context in \ilhich the Statements Complained Of Were Made - In Communications to the Halfmoon Town Board Opposing Plaintiffls Real Estate Development Application - Clearly Signaled That They Were Subjective Opinion.

"Under New York Law, a communication is unlikely to be found actionable

if its

immediate context and its broader social context and 'surrounding circumstances are such as to signal

...

readers... thatwhatisbeingread... islikelytobeopinion, not fact."' Rappaportv. Corp., 163 Misc.2d

W Publishing

I, 5 (N.Y. Co. Sup. Ct., 7994), aff'd, 223 A.D.2d 515

(1st Dep't 1996) (citing Gross v. New York Times Co., 82 N.Y.2d 146, 753 (1993)). Moreover,

in reviewing "the larger context in which the statements were published," courts are required to
consider "the nture of the prtcularforum-" Brian v. Richardson, 87 N.Y.2d 46,57 (1995) (emphasis supplied). This approach o'accords with the central value

of

assuring

'full

and

vigorous exposition and expression of opinion on matters of public interest.'

"

Immuno 11,77
a

N.Y.2d at 255 (citation omitted). Its application here underscores that citizens have

constitutional right to engage in the discussion of public issues and to vigorously and tirelessly
advocate their own positions on matters that impact the quality of

life in their community. Allan

and Allan Arts Ltd. v. Rosenblum,2}I A.D.2d 136, 143 (2d Dep't 1994) ("we are also advancing

the important public policy of encouraging the active participation of the citizenry in

issues

affecting the welfare of the community"), lr, denied, 85 N.Y.2d 921, cert. denied,516 U.S. 914

(lees).

(1)

The Broader Social Setting of the Statements: Public Meetings of the Halfmoon Town Board.

The statements alleged to be defamatory were presented to the Halfmoon Town Board on August 1,2012, and October 3,2072. There simply can be no doubt that a town board meeting

t2

is a forum where citizens expect to hear a vigorous exchange of views.3 These meetings provide "convenient local forums through which the wishes of . . . residents could be channeled to . . .
decision makers." Von Gutfeld, 80 N.Y.2 d at 137 . Far from indicating that the views expressed were assertions of objective fact, the setting in which the statements were made

- a"'traditional

haven for cajoling, invective, and hyperbole,'

"

Immuno

II,

77 N.Y.2d at 244

conf,trms that

Defendant was merely expressing his point of view

in the local political

process about the

"Anna's Place" development project. As the Court of Appeals emphasized in Von Gutfeld, open
dialogue in a community hearing like a public session of the Halfmoon Town Board promotes "one of the most fundamental forms of citizen participation" (80 N.Y.2d at 137) in public affairs: [T]he type of forum is relevant because reasonable listeners arrive armed with the knowledge that the deliberations are in pogress, that no expertise is required of those who choose to speak, and that robust, controversial debate is expected and frequently encouraged. In short, reasonable listeners in such circumstances arrive with an appropriate amount of skepticism. They come with the expectation that they are, in all probability, going to hear opinion, must of it unpolished and uninformed. They are not expected to parse carefully each statement for fact and opinion; they are expected to be reluctant to conclude - absent clear clues to the contrary from the words or context - that the
statements made are to be heard as objective fact. 80 N.Y.2d at 141-42.

No such "clues" are present here, as both the "Gold Rush!" letter and Mr. Rischert's
subsequent oral comments to the Town Board presented "diversified forms of expression and

opinion" on a matter of general public interest in contributing to the debate over the "Anna's
Place" development proposal. Brian v. Richardson, ST N.Y.2d at 53. Given that the challenged

ln

Von Gutfeld, the

Cou of Appeals

observed that the "scheme

of

governance embodied

in the First

Amendment has come to have as its central metaphor the New England town meeting, where citizens can come forward to be heard in a full and free debate of matters of civic concern." 80 N.Y.2d at 137 . As did the public hearing in VonGutfeld, the open community forum provided by public sessions of the Halfmoon Town Board embodies the marketplace

of

ideas and

"is, in essential ways, the [contemporary] equivalent of that town

meeting." Id.

13

statements were made

by a citizen speaker where "the forum was an offrcial governmental

session" open to the public, the statements plainly constituted protected rhetoric and opinion
rather than objective

fact.

Von Gutfeld, 80 N.Y.2 d at 141.

(2)

The Immediate Context of the Statements: Ongoing Public Controversy Over the Proposed "Anna's Placett Residential Development Project.

The "immediate context in which the challenged statements were made" further supports

that they are constitutionally protected. Brian v. Richardson, ST N.Y.2d at

statements were made

53.

Defendant's

within the context of an ongoing community debate over the advisability

and feasibility of the "Anna's Place" project. Indeed, Plaintiff withdrew his initial building application in the face of sustained public oppositiona because of what he acknowledged were
"concerns raised by the project." (Rischert Aff., T "5" and

Ex.12) The nature of the discussion

immediately informed citizens that what they were reading was exaggerated and polemicized

opinion. "'Where, as here, the fSaratoga County] citizenry,. . . was engaged in heated

debate
.

over a public matter, a reasonable audience would understand in that context that the speaker, . .

did not mean the words as conveying actual facts." Duane Reade, Inc. v. Clark,2 Misc.3d
10074, 2004 N.Y.Misc. LEXIS 257, *8 O{.Y. Co. Sup. Ct.,2004). This context powerfully
signaled the relevant audience that Defendant was offering his subjective criticism of Plaintifls

residential construction project

statements were made

not objective statements of facts. Indeed, the fact that the

in the midst of an ongoing public debate featured in Halfmoon Town

Board meetings makes the "case for protection here stronger." Von Gutfeld, 80 N.Y.2d at 142.

Although both the written and spoken statements he made to the Halfmoon Town Board

were issued in his personal capacity, Defendant was also a member of a local grassroots
4

In his comments to the Town of Halfmoon Planning Board on July 9,2012, Plaintiff stated that he withdrew his application for the 165-unit apartment complex because "obviously the community around there didn't want them , . . ." (See Ex. 14 to Rischert Aff., p. 6)

I4

organization opposed, in particular, to the "Anna's Place" project and, more generally, to the unchecked residential development proceeding apace in the Town of Halfmoon. (Rischert Aff.,
lTT

"3-5") Further, at the Town Board meeting on October 3,2012,

Defendant was responding

spontaneously and directly

to

comments made

at that meeting by the manager of one of

Plaintiffs rental properties extolling its virtues. Against this backdrop, the reasonable
reader/listener clearly understood Defendant's statements to be partisan expressions of advocacy5

the stuff of opinion, not fact.

E.

The "Gold Rush!" Letter Submitted to the Halfmoon Town Board Contains Nonverifiable Criticism That Constitutes Protected Opinion.

The Complaint alleges that the following statements in Mr. Rischert's "Gold Rush!"
letter -- submitted to the Halfmoon Town Board on or about August 1,2012, in opposition to the

"Anna's Place" apartment complex proposal -- are libelovs per se:

search of apartment reviews support his own claim of being a sub par builder, look at the transcripts from the planning board meeting on July 9th,20012 [sic], where he admits to not being able to build single family homes because of the poor construction he provides and therefore he can't sell single family homes."
a

"A

"His solution is to dump his poorly built and managed multi

dwelling housing units on the town of Halfmoon, because to him it's'just amoney thing' . . . . "

"Apparently, his sub par practices run into his management style."

(Compl., fln 4,6-7)

Courls routinely hold that a speaker's role as a paftisan advocate is a signal to the reasonable reader that the speaker's statements are subjective opinion rather than fact. See Immuno I, supra, and Immuno II, supra (fact that plaintiff s proposed animal experiments generated a controversy known to readers and that author of a critical letter to the editor was known to be an animal rights activist would "induce the average reader of this Journal to look upon the communication as an expression of opinion rather than a statement of fact"); McGill v. Parker,lTg A.D.2d 98, ll0 (1st Dep't 1992) (letters to government officials alleging that plaintiff mistreated his carriage horses were opinion since they were "expressed as part of an ongoing controyersy and designed primarily to persuade").

15

However, in the context in which they were made, the statements that Plaintiff is

"sub par builder" who provides "poor construction" and "dump[s] poorly built and managed"

residential apartment complexes on the Halfmoon community could not be understood by

reasonable reader to be assertions of fact, but are instead amorphous, value-laden, and subjective

criticisms of Plaintifls record as a builder. Park v. Capital Cities Communications, Inc., 181

A.D.2d 192, 196 (4th Dep't), app. dismissed, S0 N.Y.2d 1022 (1992). They merely reflect
subjective assessments that Plaintiff fails adequately to perform certain responsibilities as a

developer and landlord, and are incapable

Rappaport v.

of being objectively verified as true or

false.

W Publ. Co.,223 A.D.2d 515, 515-16 (lst Dep't

1996); Moruison v. Poullet,229

[the

A.D.2d 599, 599 (2d Dep't 1996). As such, they are "clearly a personal expression of
speaker's] disapproval

of plaintiff['s]

flandlord]

services

and were, therefore, not

861

actionable." Behr v. Ieber, 172 A.D.2d 441, 443 (lst Dep't), app. denied,78 N.Y.2d

(1991). Plaintiff is constitutionally precluded from a recovery against Mr. Rischert based on his
expression of opinions, "no matter how unreasonable, extreme or erroneous these opinions might

be." Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d at 380-81. Based on undeviating authority,
the polemical statements in the "Gold Rush!" letter are a legally insufficient predicate for
a

defamation claim even though Plaintiff may regard them as "unfair or intemperate" criticism.

O'Loughlinv, Patrolmen's Benevolent Assoc.,l78 A.D.2dI17,118 (lstDep't 1991) (statement

police officer is

"

'disgrace to entire police service' " is protected opinion).

Samuels v.

Berger,l9l A.D.2d 621 (2d Dep't

1993), underscores this

point. In that

case,

the president of a marine contracting company alleged he was defamed by the following
statement made

by a New York State Department of Environmental Conservation ("DEC")

officer: "'Samuels feels he can do whatever he pleases . . . he violates the law every day."'

l6

191 A.D.2d at 628 (emphasis supplied). The statement was published in a newspaper article discussing DEC's regulatory policies "concerning tidal wetlands and the shorelines on Long

Island." Id. at 629. The appellate court held that the statement was protected opinion:

In the context in which the alleged defamatory statement was made, an average reader would understand it to be part of the
criticisms, accusations, and counter-accusations which had become part of the public controversy surrounding Region I's enforcement of DEC regulations. "The statement complained of will be 'read against the background of its issuance' with respect to 'the circumstances of its publication,' " and"'[t]he construction which it behooves a court of justice to put on a publication which is alleged to be libeleous [sic] is to be derived as well from the expressions used as from the whole scope and apparent object of the writer.' "

Id. (emphasis supplied) (citations omitted)

As in

Samuels, Mr. Rischert's statements critical

of Plaintifls "sub par [building]

practices fthat] run into his management style" can only be understood
submission to the Halfmoon Town Board

in the context of

as "part

of the criticisms, accusations and counter-

accusations which had become part of the public controversy surrounding" the impact on the

community of Plaintiff s "Anna's Place" development proposal. Samuels, 191 A.D.2d at 629. To make the point in opposing Plaintifls real estate construction application

as Mr. Rischert

did in his "Gold Rush!" letter - that he does not properly build or maintain his properties and is
unresponsive to tenants is to express an opinion regarding his performance as a developer and

landlord. Accordingly, "it would be plain to the reasonable reader that defendantf] w[as]
voicing no more than
a

highly partisan point of view," Immuno AG,, 77 N.Y.2d at255. See also

McGill v. Parker,ITg A.D.zd at 110 ("[n]o reasonable person ... would find [the comments] to
be anything other than highly partisan expressions of opinion").

I7

(1)

The Use of Rhetorical Hyperbole and Exaggerated, Figurative Language Clearly Indicates Protected Opinion.

In addition, the tenor6 and content of the "Gold Rush!" letter show that the comments
complained of are classic examples of partisan criticism, and were obviously understood as such.

Rather than making factual assertions, Mr. Rischert used hgurative language and exaggerated
hyperbole throughout to protest the "Anna's Place" project as incompatible with what he viewed

as an acceptable residential development policy in the Town letter,T "[t]he tone

of Halfmoon. Throughout

the

is ... exaggerated, and heavily laden with emotional rhetoric and moral

outrage." Milkovich v. Lorain Journal Co., 497 U.S. 1, 32 (1990) (Brennan, J., dissenting).

"[T]he conclusion easily follows that defendant's statements in this case were hyperbolic."
Von

Gutfeld 80 N.Y.2d at 140.

In DRT Construction Co. v. Lenkei, 176 A.D.2d 1229 (4th Dep't 1991), plaintif "were

seeking zoning and land use approvals to construct 700 residences including multiple family dwellings, two commercial plazas and a nursing home on a 288 acre parcel of land in the Town

of Amherst." Id.

Defendant distributed

two flyers opposing the construction

project

applications, which respectively stated the following:

. .

"Now is the time to act and ,.. preserye the beauty and peaceful Id.; emphasis in life of Amherst from @."
original.

"[T]his project is still being pushed by proit hungry developers to whom your life and mine is of no concern [slc] instead they worship profit at any cost to others." Id.; emphasis supplied.

"In determining whether speech is actionable, courts must additionally consider the impression created by the words used as well asthe general tenor of the expression, from the point of view of the reasonable person."
Immuno 11,77 N.Y .2d at243 (emphasis supplied). The "Gold Rush!" letter is replete with exaggerated metaphor and hyperbolic language, clearly signaling that it is the emotionally chargedrhetoric of protest: e.g.,"fffhe land is being stripped as if there is gold in the hills of Halfmoon;" "[i]t would be shameful if the Town Board ignored the residents of Halfmoon and their concerns;" "what has been built. . . is like a cancerous tumor that cannot be surgically removed." (See Ex. A to Compl.,

pp. 1,7)

18

Defendant also circulated a third flyer which "contained a cartoon depicting three men with

Hitler moustaches on a bulldozer running over a deer calling for help," and one of the men "had
money coming out of his pockets."

Id.

The Appellate Division overturned the lower court's

denial

of a defense motion for

summary judgment and dismissed the plaintiffs' defamation

claims as a matter of law:

Supreme Court should have dismissed the complaint because the statements contained in the flyers and the depiction in the cartoon as a matter of law were not defamatory but were constitutionally protected opinion on a subject of public controversy. The phrase does not contain a provably false "@" factual connotation, cannot reasonably be interpreted as stating actual facts and is the sort of "loose, figurative or hyperbolic language" that is constitutionally protected opinion.

Id. at 1229-30 (citations omitted) (emphasis in original). As in Lenkei, the statements challenged

by the instant Complaint "cannot be interpreted as anything other than fDefendant's] opinion
concerning the effect of the development" upon the Town of Halfmoon. Id. at 1230.

As New York State courts have held time and time again, the use of such "rhetorical
hyperbole" and "imaginative expression" signals to the reader that what is being expressed is
partisan advocacy, not

fact.

Immuno

II,

77 N.Y.2d at 244 (use of hyperbole "signalfs] the

v.

reasonable observer that no actual facts were being conveyed about an individual"); Lukashok

Concerned Residents of North Salem, 160 A.D.2d 685, 686 (2d Dep't 1990) (statements that
developer chose "malicious methods" and resorted to "terrorism" by suing each member of town

board "'were merely figurative" expression and thus nonactionable); Albano v. Sylvester,222

A.D.2d 472, 475 (2d Dep't 1995) (held, statements by school board trustee that principal's
transfer

of children from

elementary school

to another school without first contacting their

mother was a "cruel" and "inhumane" act are rhetorical hyperbole rather than objective fact and

thus constitutionally protected). See also Greenbelt Cooperative Publ. Assoc. v. Bresler,

t9

398 U.S.

6, 7 (1970) (use of word "blackmail" to describe negotiating position of plaintiff,

"prominent local real estate developer," with respect to a controversial building project not defamatory because "no more than rhetorical hyperbole, a vigorous epithet"); Galasso
v.

Saltzman,42 A.D.3d 310, 311 (1st Dep't 2007) (held, statements made in heated dispute among

residential property owners that plaintiff was

"a ctiminal" who was "engaged in

criminal

conduct" and had "committed crimes" against the property "constitute opinion and are not
actionable as a matter of law").

The remarks challenged here have all the hallmarks of impassioned opinion that is
common in public debate and protected as free speech. "'Whether the analysis looks to the
'general tenor' of the words, . . . or the setting in which they were spoken, . . . defendants' words

were protected speech." Von Gutfel 80 N.Y.2d at 140. Beginning with the very title of the letter, the hyperbolic and figurative language employed throughout indicates that the statements

at issue are non-actionable opinion rather than objective fact. Polish American Immigration
Relief Comm. v. Relax, 819 4.D.2d370,374 (lst Dep't 1993); Shinnv. Williamson,225 A.D.2d 605, 606 (2d Dep't 1996); Trustco Bank v. Capital Newspapers Div. of the Hearst Corp.,2I3

A.D.2d 940, 942 (3d Dep't 1995); see generally Immuno

II,

77 N.Y.2d at

244.

Even the

Complaint's allegation that Plaintiff was portrayed as an "incompetent, greedy developer with

no regard for

construction practices" (Compl., n 4a; emphasis

supplied) a

gloss on

Mr. Rischert's comments, not what he actually said -- is " 'no more than rhetorical hyperbole or
opinion, all too typically unfair in the treatment of an opponent, but which [is] not actionable.' "
Cook v, Relin,280 897, 898 (4th Dep't 2001) (citation omitted); Rinaldi v. Holt, Rinehart ^.D.2d Winston,42N.Y.2d at 381 ("To state thal ajudge is ncompetent is to express an opinion

&

regarding the judge's performance in office.") (emphasis supplied); Ansorian v. Zimmerman,2l5

20

A.D.2d 614, 614 (2d Dep't 1995) (statements to the effect that plaintiff was "incompetent"

as a
v.

teacher constituted personal opinion rather than objective fact) (emphasis supplied); Zuber

Bordier,l35 A.D.2d 709,710 (2d Dep't 1987) (statements charging that plaintiff was "ill-suited
to teaching" and attacking her "competency as a teacher" found to be constitutionally protected
expressions of opinion) (emphasis supplied).

(2)

The Word "Admits" Reinforces that Certain Statements Complained of Are Protected Expressions of Opinion.

To the extent the Complaint alleges the "Gold Rush!" letter is actionable as stating that

Plaintiff "admits" (Compl., lTT 27(a)-(b); emphasis in original) or "admitted" (1d., n27@);
emphasis in original) to certain statements objected to, it also misses the constitutional mark. In

Millus v. Newsday, the Court of Appeals repudiated the exact

same argument as that espoused by

Plaintiff here: "[wJe reject the contenton tht defendants' use of 'dmts' renders the
allegedly defmtory statement one of fct rther thun n opinion as a mtter of

lw.'

89

N.Y.2d af 842 (emphasis supplied). Mr. Rischert's choice to use the word "admits" in this
context is plainly his characterization of what Plaintiff said during the Town Planning Board
meeting on July 9,2012, and "indicates that some interpretation of plaintiff s words occurred,"

id.

in other words, it underscores the inherently subjective nature of Defendant's

comments.

Plaintiff has the controlling analysis precisely backwards. Contrary to his contention, Millus
reinforces that the statements are opinionated advocacy protected under the First Amendment
and New York State Constitution.

F.

The Oral Statement Made During the Halfmoon Town Board Meeting Is Protected By the Opinion Privilege.

The Complaint additionally alleges that the following oral statement made by
Mr. Rischert to the Halfmoon Town Board on or about October 3,2012 -- which refers back to
his "Gold Rush!" letter -- is slanderous per sei

2T

"[I]t was in support of actually Mr. Bruce Tanski's assertion that he does not build to the standards of the other builders in the area and that this is just a money thing for him."

(Compl., fl 12)

Again, the statement that Plaintiff does not match the building standards

of

his

competitors is expressly comparative and inherently evaluative. "[T]he statements criticizing

plaintiff

s performance and comparing

h[im] unfavorably to other flandlords] are,

as a matter

of

law, nonactionable expressions of opinion." Miller v. Richman,184 A.D.2d 191, 193 (4th Dep't

1992). Plaintiff s attempt to transform this spoken comment into the basis of a slander claim is

belied

by

Von

Gutfeld's emphasis on the inherently opinionated exchanges

of

viewpoints

characteristic of public meetings:

Reasonable listeners come to a public hearing with expectations that the speaker is airing a layperson's opinion. Nothing about the circumstances of this hearing or fthe speaker's] appearance, and certainly nothing about the words uttered themselves, would lead reasonable persons to conclude that they were witnessing a presentation of fact. Thus, given the loose nature of the language, the "general tenor" of the remarks made at a public hearing, and the skepticism a reasonable listener brings to such proceeding, we believe the second statement s not such thst a reasonable listener would conclude fctual assertions were being msde about plaintffi
Von Gutfeld, 80 N. Y.2 d at 1 44 (emphasis supplied).

Nor is what the Complaint characterizes as a slanderous attribution of "financial

motivations"

to Plaintiff

(Compl., n27)) actionable as

a matter of law. Plaintiffs

disagreement with Mr. Rischert's observation conceming his motivations involves a matter "not

readily verifiable" and "intrinsically unsuited as a foundation for libel." Immuno 1,74 N.Y .2d at

560. The New York Court of Appeals has expressly

stated that speculative "inquiry into

motivation is within the scope of absolute privilege" for statements of opinion. Rinaldi v. Holt,
Rinehart

&

Winston, 42 N.Y.2d at 382. See also Zerman v, Sullivan

& Cromwell, 677

F.Supp.

22

1316, 1320 (S.D.N.Y. 19SS) (held, statement plaintiff aimed to "set up" brokerage houses "is

nothing more than speculation about . . . motivations" and, as such, is a "clear statement of opinion" which "does not support a claim for libel"); Janklow v. Newsweek, Inc., 788 F.2d 1300,
1303-04 (8th Cir. 1986) (noting that the "singling out

of . . . motive is a subtle and slippery

enterprise," and finding that magazine story's unarticulated "implication" that

criminal

prosecution was motivated by revenge was too imprecise and unverifiable to be anything other
than opinion).

G.

The Statements Complained of Are Classic, Nonactionable "Pure Opinion" Based on Information in the Public Domain. In addition, the above statements from the "Gold Rush!" letter (first cause of action) and

the October 3,2012, Halfmoon Town Board meeting (second case of action), respectively, ale protected under both the First Amendment and New York State Constitution because they are
statements of "pure opinion" based on facts

-- including, inter alia, the previous legal action

brought against Plaintiff by the United States for a series of building code violations, and the

litany of complaints lodged against him by tenants as reported on a national apartment rating
website -- which were fully disclosed in the public domain. (Rischert Aff., lJf "8," "10" and Exs. 15-16,

18) In NewYork

State, "pure" opinions are absolutely privileged and

will

not

support an action for defamation as a matter of

law.

"Statements expressing pure opinion are

constitutionally protected and therefore nonactionable, 'even if false and libelous, and no matter

how pejorative or pernicious they may be.'

"

Levittown Norse Assoc. v. Day Realty Corp.,150

A.D.2d 263,264 (1st Dep't 1989) (citations omitted), app. denied, 75 N.Y.2d 703 (1990). A pure expression of opinion occurs when the parties to the communication know the facts or
assume their existence and the statement is obviously based on those facts as justification for the

23

opinion.s Such statements are "not actionable because . . . a proffered hypothesis that is offered
aft.er a

full recitation of the facts on which it is based is readily understood by the audience as

conjecture." Gross v. New York Times, 82 N.Y.2d 746, 154 (1993) (citing Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1290 (4th Cir. 1987)).
New York Times Co.,75 F.3d
See also Moldea v.

ll37,ll44-45 (D.C. Cir. 1994) ("Because

the reader understands

that such supported opinions represent the writer's interpretation of the facts presented, and
because the reader is free to draw his or her own conclusion based upon those facts, this type

of

statement is not actionable in defamation."). Classic examples of such "pure" opinions are those issued where, as here, the underlying facts are available in the public domain.e

Here, as
expressions

a matter of

constitutional law, the challenged statements are similarly

of "pure" opinion entitled to absolute immunity. The essential facts on which

Mr. Rischert's opinions were based

the federal government's previous lawsuit against Plaintiff,

and the voluminous complaints reported on www.apartmentratings.com conceming two of his

other apartment properties

were widely accessible in the public domain, and known to the

public.
8

Defendant's statements can therefore only plausibly be construed as his personal

ln Steinhilber v. Alphonse,6S N.Y.2d 283,289 (1986), the Court of Appeals defined a "pure opinion" entitled to absolute constitutional protection as "a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be 'pure opinion' if it does not imply that it is based upon undisclosed facts."
As a prominent commentator has noted, the modern constitutional protection afforded "pure opinion" derives from the fair comment privilege, which was established at common law "primarily to protect public debate by sheltering communications about matters of public concern." SACK ON DEFAMATION, $ 4.4.1 at 4-59 (Volume 1, Third Edition 2003) (footnote omitted). See also Milkovich,497 U.S. at l3 ("due to concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of 'fair comment' was incorporated into the common law as an affirmative defense to an action for defamation"); accord, Gross v. New York Times,82 N.Y.2d at 153 ("the seasoned common-law categories for actionable and nonactionable reportage have been invoked to inform our modern constitutional anaysis") (citations omitted). The fair comment privilege "extends . . . to comments on facts that are common knowledge or readily accessible to the reader," and "protects continuing commentary on matters with which the reader is likely already to be familiar, . . . without requiring the publisher to repeat on each occasion the details of the event," SACK ON DEFAMATION, S 4,4.2 at 4-61 (footnote omitted), The rule's justification is that, when the facts are disclosed, readers/listeners "are able to judge for themselves whether the comment is well-founded." Id, S 4.4.2 at 4-60 (citing Holy Spirit Assoc. v. Sequoia Elsevier Publ. Co.,4 Med. L. Rptr. (BNA) 231 I (N.Y. Co, Sup. Ct,, 1979), and Brewer v. Hearst Publ. Co., 185 F.2d 846, 850 (7th Cir. 1950)).

24

viewpoint based on publicly available information. The premise is explicit, and readers/listeners were by no means required to accept Mr. Rischert's characterization of Plaintiff s record as a landlord in the community. See Gross v, New York Times, 82 N.Y.2d at 155 Pace v. Rebore,
107

A.D.2d30,32 (2d Dep't 1985) ("We hnd that the characterization of plaintiffs' actions

as

involving the use of 'political clout' was an expression of opinion, rather than a statement of fact,
and is privileged

in light of the statements of fact given in support."); Miness v. Alter,

262

A.D2d at 375 ("The

statements are not actionable because the facts upon which these allegedly

defamatory statements were based are fully and accurately set forth in the Newsletter and

it

is

clear to a reasonable reader that the accusations are merely opinion and personal surmise built upon those facts."),

In Levittown Norse Assoc. v. Day Realty Corp., supra, a real estate broker made the
statement that

"'We might be interested but the owners of that property fplaintiff]

are very

difhcult to deal with.'

"

The court determined that a newspaper's reporting of the statement was

protected pure opinion:

Upon our review of these statements and the context in which they were made, we conclude that they are not libelous as a matter of law. First, the statement that the owners "'are very dfficult to desl with"' is n expresson of pure opnon . . ..for the context n whch it ppears does not mply that t s based upon undisclosed facts. Statements expressing pure opinion are constitutionally protected and therefore nonactionable, "even if false and libelous, and no matter how pejorative or pernicious they may be."
150

A.D.2d af 264 (emphasis supplied) (citations omitted).

The "Gold Rush!" letter contains a full recitation of the information (and opinions from

other sources) on which the statements challenged by the Complaint are predicated. The
statements are therefore readily understood as opinions which, "even

if falsely and insincerely

held, are constitutionally protected [since] the facts supporting the opinion are set forth."

25

Rinaldi,42 N.Y.2d at 381. Moreovet, Mr. Rischert's oral comments to the Town Board on
October 3rd

of last year were made directly following and in response to those made at the

meeting by Paula Davis, the manager of Halfmoon Heritage Apartments, who expressed her

view that Plaintiff s "buildings are tastefully built, beautifully landscaped and maintained" and, further, praised Plaintiff as "one

of the highest taxpayers in Halfmoon" who "creates

and

provides many jobs in th[e] town." (Ex.B to Compl., p.

l1; acknowledging that Mr.Rischert

"put forward . . . apartment reviews" on "Bruce Tanski properties" in order "to make his point").

Plaintiff therefore had, "in the same setting and with the same audience, . . . the immediate
opportunity to air his competing

view."

Von Gutfeld, 80 N.Y.2d at 138. By its very nature, this

impromptu give-and-take exchange establishes that Mr. Rischert's unflattering comparison of

Plaintiff s building standards to those of other builders and the accompanying assessment of
Plaintiffls financial motivation are on equal footing under the First Amendment with Ms. Davis's favorable opinions concerning Plaintiff. Levin v. McPhee, 917 F.Supp. 230,240 (S.D.N.Y. 1996). ("This is particularly true in this case in light of the presentation of conflicting [opinions]
provided both by fcritics] . . . and by other speakers.").
Readers and listeners could interpret Mr. Rischert's statements in the "Gold Rush!" letter

and during the Town Board meeting in order to decide for themselves whether those opinions

were valid, thereby contributing to public discussion on a matter of public concern. The
statements did not rest on any undisclosed

facts. Lukashok v. Concerned Residents of North

Salem, 160 A.D.2d at 686; Park v. Capital Cities Communications, 181 A.D.2d af 196-97, and
therefore "must receive the constitutional protection accorded to the expression of ideas." Zuber
v.

Bordier,l35 A.D.2d at710. This is the essence of pure opinion, which Plaintiff may not stifle

through the instant litigation

in a misguided attempt to avenge criticism of his record as a

26

landlord and
project:

to

suppress grassroots opposition

to the proposed Anna's Place development

Based upon the facts stated and public debate provoked by the statements, each reader may draw his own conclusion as to whether [the author's] views should be supported or challenged. In short, the matter is subject to public debate. Plaintiff may not delimit that debte by seeking to punish, through libel dmges, those who would contribute to the debate through the circulution of strong, even hrsh, contrsting opinions.

Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d at 381 (emphasis supplied).

Because Mr. Rischert's comments were partisan observations derived from information

disclosed in the public domain, they readily qualify as pure opinion which is constitutionally

protected. As conclusions based on the "nature of the complaints lodged against plaintiff, fthey]

may not be the basis for recovery of monetary damages." Amodei v. New York

Stqte

Chiropractic Assoc., 160 4.D.2d279,281 (lstDep't 1990) (citations omitted). Accordingly,

"[t]he rule to be applied may be simply stated. An expression of pure opinion is not actionable."
Steinhilber, 68 N.Y.2d at
Complaint.

289. That rule is dispositive

here and requires dismissal of the

POINT

III

PLAINTIFF'S RETALIATORY DEFAMATION CLAIMS CONSTITUTE A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION A "SLAPP" SUIT THAT SHOULD - A MATTER - FEES, COSTS BE DISMISSED AS OF LAIJV; AND DAMAGES ARE WARRANTED

A.

This is a SLAPP Action.

New York, like numerous other states, has recognized the severe danger posed to free
speech when a party to a public controversy seeks to use the judicial process

to silence or punish

those who publicly comment on that controversy through what is known as a "Strategic Lawsuit

27

Against Public Participation," or "SLAPP" suit. Anti-SLAPP statutes are predicated on the idea
that it is not enough to simply allow the defendant in a SLAPP action to ultimately prevail urder the

normal standards of a motion for summary judgment, because forcing a defendant to endure the
burden and expense of litigation is, in itself, a victory for the SLAPP plaintiff and a defeat for the

defendant. SLAPP actions ate "an attempt to 'privafize' public debate

a unilateral effort by one

side to transform a public, political dispute into a private, legal adjudication, shifting both forum and

issues to the disadvantage of the other

side." Pring & Canan, "Strategic Lawsuits Against Public

Participation ('SLAPP'): An Introductionr Bench, Bar and Bystanders," 12 U. BntocEPoRT

L. Rev. 937,941 (1992). Perhaps with unintended irony given his statement as a matter of public
record that he "would never attempt to limit another residents' [sic] right to free speech" (Rischert

Aff.,

"4"

arrd

Ex. 9), that is precisely what Plaintiffseeks to do here.

Recognition of SLAPP suits is of recent vintage, with the term commonly attributed to the work of Professor George W. Pring. See, e.g.,"SLAPPs: Strategic Lawsuits Against Public

Participation," T Pacp ENvrl-. L. Rsv. 3 (1989). The first state to pass anti-SLAPP legislation
was Washington

in 1989.

Wash. Rev. Code $ 4.24.500-520

(2005). Currently thirty (30)

states

and the territory of Guam have passed anti-SLAPP laws, and bills are pending or advocated in several additional states.l0 New York enacted its anti-SLAPP statute

in

1992 with the objective

of deterring retaliatory litigation, often brought under the guise of defamation claimsll and
employed as a tactic by business owners "who find

it an effective means of silencing

public

See Public Participation Project Fighting

for Free Speech Website (last viewed March <http://www.anti-slapp.org/your-states-free-speech-protection/ (providing links to state statutes).

6,

2013),

at

Defamation claims are the most common cause of action asserted in SLAPP suits. "The conceptual thread that binds them is that they are suits without substantial merit that are brought by private interests to stop citizens from exercising their political rights or to punish them for having done so." Gordon v. Marrone, 155 Misc.2d 126,736 (Westchester Co. Sup. Ct., 1992) (citations and quotation omitted), ff'd,202 A.D.2d 104 (2d Dep't 1994), app, denied,84 N.Y.2d 813 (1995).

28

opposition to controversial projects." 7-32 Weinstein-Korn-Miller, New York Civil Practice:

CPLR 3211:51 (2007).

In passing the anti-SLAPP legislation, the Legislature declared "it to be the policy of the state that the rights of citizens to parlicipate freely in the public process must be safeguarded with great diligence" and that "luws of the state must provde lhe utmost protection for the free exercise of speech, pettion and assocuton rghts, particularly where such rights re exerced in a publc forum with respect to issues of public concern," Allan & Allan Arts v. Rosenblum,2}l A.D.2d af 143-44 (quotingL 1992, ch767, $ 1) (emphasis supplied). See also
T.S. Haulers,

Inc, v. Kaplan,Index No. 7313101,2001 N.Y. Misc. LEXIS

405, at *4-5 (Suffolk Co. Sup. Ct., May 2,2001) (discussing New York legislative history),

aff'd,295 A.D.2d 595 (2d Dep't 2002).

New York's tradition of expansive protection for free speech derived from Article I,
Section 8 of the State Constitution

including the absolute protection afforded to expressions

of opinion (see POINT II 4., supra)

is at one with the public policies that animate

the

anti-SLAPP statute. See Immuno 11,77 N.Y.2d at255

("4 publication

that provides a forum for

such statements on controversial matters is not acting in a fashion at odds with the premises of

democratic government and with the orderly manner

in which economic, social, or political

change is to be effected, but to the contrary is fostering those very values.") (citation omitted).

While the State's Constitution, history and traditions call for particular vigilance by New York courts

in

safeguarding freedom

of

speech against undue influence, the anti-SLAPP statute

provides

a particular

mechanism towards that

end.

Significantly, New York courts

are

empowered by the law to dispose at the very outset with meritless claims asserted by those who

would force individual citizens to expend vast resources in defending them. New York courts undertake a two-step analysis in determining whether the anti-SLAPP
statute applies. First, the Court must determine whether the plaintiff is a "public applicant,"

29

which is defined by Civil Rights Law $ 76-a(1)(b) to include any person who has "applied for or obtained" a "permit, zoning change, lease, license, certihcate or other entitlement for use or
permission to act" from "any government body." Plaintiff, a prominent (albeit controversial) and

politically connected real estate developer who is seeking approval from the Town of Halfmoon
Planning Board to construct alarge residential complex consisting of at least nineteen (19) and up to as many as twenty-seven(27) building lots on an approximately 19.25-acre parcel of land (Rischert Aff., 11"5-J," "16" and Exs. 11-13, 20), clearly satisfies these criteria. Duane Rede
v.

Clark,2004 N.Y. Misc. LEXIS 251, at t6 (plaintiff is "public permittee" because "it sought
permission to develop its store and erect the sign from a govement body"). Indeed, the official

Meeting Minutes for the Town of Halfmoon Planning Board on July 9,2012, specifically refer to

Plaintiff as "the applicant" (see Ex. C

to

Compl., pp. 5, 7), and the Complaint itself

acknowledges that the Town Planning Board is the govemmental body "charged with regulation, approval, and oversight of Plaintifls construction and development projects." (Compl.,

I74;

see

also id., fl 32) Next, the Court must determine whether the lawsuit is an "action involving public

petition and participation." This is defined by Civil Rights Law $ 76-a(I)(a) to include any
action by a public applicant which is "materially related to any efforts of the defendant to report
on, comment on, . . . challenge or oppose such application or permission." In this case, then, the

Court must determine whether Plaintiff s lawsuit is "materially related" to Mr. Rischert's
commentary "challengling]" and "opposfing]" the proposed "Anna's Place" development

project. There can be no doubt that it is, given that the Complaint's defamation claims
exclusively from those statements.

arise

The trial court's decision in ZS Haulers, Inc. v. Kaplan is instructive in its application of

the anti-SLAPP statute. Plaintiff in that case applied to a local town board for a permit to

30

continue its sand mining operations. Defendant, a not-for-proht civic association, published
statements opposing

plaintiffls application in local newspapers which stated that"'T.S. Haulers

has not been forced to slow down or stop its illegal and damaging activities'" and connected politically

"'is

well

in Suffolk County

[because

it] sponsors the race car team of Riverhead

*3.
The Z.S. Haulers court had

Councilman Ed Densieski.'

"

2001 N.Y. Misc. LEXIS 405, at

no difficulty concluding that the anti-SLAPP Law applied:

It is clear that plaintiff is a public applicant or permittee

opposition

since it was seeking a special permit from the Town Board of Riverhead. It is equally as clear that the communication related to the

organizations whose aea application.

to the application by two not-for-profit civic of concem encompasses plaintiffls

Id. at *6 (citation and footnote omitted), aff'd,295 A.D.2d at 596. For the reasons elaborated by
the Appellate Division, the statements were found not actionable in defamation as a matter of law: Here, in the context in which this speculation appeared--a highly partisan communication from an identified group, opposing the plaintiffls application for a special permit in an acrimonious and long-running public dispute over the plaintiff s use of the property for mining--a reasonable listener or reader would find, at best, that such speculation constituted nonactionable statements of opinion, not fact. 295 A.D.2d at 597. The appellate court upheld the grant of defendant's motion for summary

judgment dismissing the Complaint pursuant

to CPLR 32I2(h), along with an award

to

defendant of its costs and attorneys' fees on its anti-SLAPP law counterclaim because "plaintiff

failed to demonstrate that this action has a sound and substantial basis in fact and law."
Id. at 598.
Here, Plaintiff has filed defamation claims which are similarly baseless. His lawsuit

stands exposed

by the undisputed proof in the record as a retaliatory vendetta

against

3l

Mr. Rischert as an outspoken opponent of his record and practices as a local landlord and developer. Simply put, Plaintiff is seeking to punish Mr. Rischert through the legal process as retribution for Defendant's publicly stated opposition to his proposed "Anna's Place" project.

The Complaint is predicated solely on Mr. Rischert's written and oral commentary which
challenged, opposed, and criticized Plaintifls application to the Town of Halfmoon Planning Board to build a major subdivision that would, in Defendant's view, "carve up the landscape

with subpar multi dwelling density residences." (Rischert Aff., !H"11-15" and Exs. l8-19) It
therefore cannot seriously be disputed that the instant lawsuit

is "materially related" to

Defendant's statements. T.S. Haulers, 295 A.D.2d at 596; Duane Reade,2004 N.Y. Misc. LEXIS 25l,at*75.

Plaintiff has taken the idea of responding to community opposition to his residential
development project

to

vituperative and harassing extremes, culminating

in this frivolous

litigation, which ignores the First Amendment imperative that citizens are allowed freely to express
themselves to government officials on matters

of current public importance. He is seeking to

control the way that Defendant

and any other would-be critics

speak out on the "Anna's

Place" development proposal.12 "Consequently, this action is a classic SLAPP action." ZS.
Haulers,2001 N.Y. Misc. LEXIS 405, at *6. As a commentator has observed: Debate on public issues is distorted when one side is afraid to speak, or when one side is able to shift the efforts of its opponents away from public issues toward private self-defense. The entire character of public discourse is polluted when intimidation becomes a common or acceptable tactic.
t2

VonGutfeld, S0 N.Y.2d at 137 n.l ("In recent years, there has been a rising concern about the use of civil litigation, primarily defamation suits, to intimidate or silence those who speak out at public meetings against proposed land use development and other activities requiring approval of public boards. Termed SLAPP suits -- strategic lawsuits against public participation -- such actions are characterizedas having little legal merit but are fled nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future. In response, New York State enacted a law specifically aimed at broadening the protection of citizens facing litigation arising from their public petition and participation.") (citations omitted). A more accurate description of the instant litigation would be hard to come by.

3Z

Braun, "lncreasing SLAPP Protection: Unburdening the Right of Petition in Calirnia," 32

U.C. Dnvts L. Rpv. 965,970 (1999). The same could certainly be said of Plaintiffls defamation claims in the instant case. This is precisely the sort of harassing and punishing lawsuit that the anti-SLAPP statute is meant to prevent.

B.

The Standard of Review. New York's anti-SLAPP statute "facilitates the early dismissal of the 'SLAPP' suit, by

tightening the legal substantive requirements imposed upon plaintiffs in order to prevail in such a suit and by lowering the procedural hurdles that the defendant in such a suit must clear in order

to obtain dismissal" on summary judgment. Duane Reade,2004 N.Y. Misc. LEXIS 257, at*4. To achieve this objective, the Legislature amended CPLR 3212 to add section (h) at the
time the anti-SLAPP statute was enacted. CPLR 32I2(h) makes clear that the ordinary standards goveming summary judgment do
same

not apply to a SLAPP action. Instead, when a complaint is found to be subject to the
anti-SLAPP

statute

Plaintifls defamation claims

are here

a defense summary judgment

motion "shll be granted unless the party responding to the motion demonstrates 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." N.Y. Civ. Prac. L. & R. 32I2(h)

(McKinney 2005 + 2012 Supp.) (emphasis supplied).

To establish a substantial basis, Plaintiff "must provide strong evidence that a trier of fact could determine that there exists a high degree of probability" that he can prove the elements of his claims. T.S. Haulers,2001 N.Y. Misc. LEXIS 405, at

*7. "This high

standard of review is a

JJ

legislative determination to protect public discussion which would be chilled by long litigation
and its costs."

Id. attT-8. Clearly, this is not

a standard

Plaintiff can meet.13

(1)

The Constitutional Opinion Privilege is Dispositive of Plaintiffs Defamation Claims.

The evidence and legal authority presented in support of this motion unequivocally
establish that the disputed statements in Mr. Rischert's "Gold Rush!" letter and his subsequent

oral comments to the Halfmoon Town Board are immune from liability based on the absolute constitutional protection afforded
Se

to expressions of "pure" opinion in New York

State.

POINTS II A.-F.,

supra. The Complaint's libel and slander claims therefore cannot be

sustained as a matter of law.

C. Defendant Is Entitled to Attorneys'

Anti-SLAPP Statute.

Fees, Costs and Damages Under the

Civil Rights Law $ 70-a(1Xa) provides for costs and attomeys' fees where it

is

demonstrated that an action involving public petition and participation was conmenced and 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.

Z,S.

Haulers,200l N.Y. Misc.

LEXIS 405, at *8-9 ("summary judgment must be granted on the counterclaim to the extent of costs
and attomey's fees"). Civil Rights Law $ 70-a(lXb) provides for compensatory damages defendant demonstrates that such action was commenced

if the

or

continued

for the purpose of

harassment, intimidation, punishment or malicious inhibition of free speech, petition or association

rights, and $ 70-a(1)(c) provides for punitive damages if that was the sole purpose. Duane Reade,

2004 N.Y. Misc. LEXIS 251,

at *30-31 (awarding costs and attorneys'fees and directing

filing of SLAPP action).

assessment of compensatory and punitive damages as sanction for

l3

The Couft must also grant a preference in the hearing of a motion for summary judgment on a SLAPP suit. CPLR32l2(h). If - contrary to reality and the overwhelming evidence in the record - the Court determines
that this is not a SLAPP suit, the Complaint still should be dismissed as a matter of law pursuant to CPLR 3212.

34

There is ample evidence in the Complaint itself, augmented by the record on summary judgment, that such is the case here. Plaintiff cannot complain he was not on notice. After the Complaint was filed, and in advance of f,rling this anti-SLAPP law motion, Defendant's counsel

painstakingly advised Plaintiff that his claims were frivolous and that Defendant would seek
fees, sanctions and other relief

if

he persisted with this action. (Grygiel Aff., T "6" and Ex. 4)

Duane Reade,2004 N.Y. Misc. LEXIS 251, at *30-31 (granting defendant an award of costs and

attorneys' fees pursuant to anti-SLAPP law where, before hling motion to dismiss, defendant's counsel wrote

plaintiffs counsel "detailing the factual and legal

reasons that

its Complaint

lacked any proper basis."). Plaintiff nevertheless obstinately chose to do so. He should therefore
be assessed Mr. Rischert's costs and fees, as well as damages.

POINT IV

IN THE ALTERNATIVE, AN AWARD OF COSTS AND REASONABLE ATTORNEYS' FEES IS MANDATORY, NOT PERMISSIVE, UNDER CPLR 8303-A UPON A FINDING THAT AN ACTION WAS FRIVOLOUS, AND SUCH AN A\ryARI) IS APPROPRIATE IN THIS CASE
"Litigants who use our court system for improper purpose, such as for retribution and
harassment,

hy be sanctioned under the rules designed to deter frivolous conduct." Gordon

v.

Marrone,202 A.D.2d at 105. CPLR 8303-a mandates an award of costs and attorneys' fees "in
an action to recover damages for personal injuryla . . . commenced or continued by a

plaintiff . . .

that is found, at any time during the proceedings or upon judgment, to be frivolous by the court. . ,

."

N.Y. Civ. Prac. L.

& R., $ 8303-a (McKinney

1981

&

2013 Supp.) (hereinafter

t4

This action is one for "personal injury" within the meaning of CPLR 8303-a. See Bonlla v. Reeves,49 Misc.2d 273,219 (N.Y. Co. Sup, Ct., 1966) ("The definition of 'personal injury'is an exceedingly broad one (General construction Law, $ 37-a) and covers every variety of injury to a person's body, feelings or reputation.") (emphasis supplied).

35

"CPLR 8303-a"). By definition, the statute provides that conduct may be deemed frivolous
where:

The action, [or] claim ... \/as commenced or continued in bad faith without any resonble basis in law or fct and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

CPLR8303-a(c)(ii) (emphasis supplied); see 22 NYCRR $ 130-1.1(cX1) (conduct may

deemed frivolous where

be
a

"it is completely

without merit in law and cannot be supported by

reasonable argument for an extension, modification or reversal of existing law").

CPLR 8303-a imposes upon counsel a duty to investigate a claim before commencement
and to discontinue a claim upon learning that

it lacks

a reasonable

basis. Mitchell v. Herald Co.,

137 A.D.2d 213,219 (4th Dep't), app. dismissed without op.,72 N.Y.2d 952 (1988). Well in

advance

of the instant motion, Defendant's counsel wrote Plaintifls attorney, candidly

and

comprehensively setting forth the reasons this action lacked Ex.

merit. (Grygiel Aff., 'll'!J"6" ad

4) Plaintiff

s attorney did not deign to reply to this letter

until much later than the requested

response date, and never addressed the merits of Defendant's legal arguments.

(1d.,n"7"

artd

Ex.

5) Rather,

Plaintiff insisted on proceeding with this action, notwithstanding that he has no

claim as a matter of law.

There is no evidence that Plaintiff

apparently blinded by his zeal to strike back at

Mr. Rischert for publicly opposing the "Anna's Place" building application

or his

counsel

conducted any investigation prior to commencing this litigation.ls To the contrary, the evidence

is clear that even after being advised in detail why the action was meritless as a matter of law,
l5

As the record on summary judgment makes clear, Defendant examined multiple information sources, including federal judicial documents, as the bases of the opinions at issue (seeRischef Aff., fll "8-10" and Exs. 15-16, l8) - public domain information that was readily available to Plaintiff himself. Neveftheless, Plaintiff evidently undertook no investigation, nor did he evidently trouble himself with even a cursory examination of the controlling case law establishing the paramount protection afforded speech on public issues under the First Amendment and the absolute immunity bestowed upon statements of opinion by Article I, Section 8 of the New York Constitution, before pulling the trigger on this lawsuit.

36

Plaintiff did not discontinue the action. In Mitchell v. Herald Co., supra, the Appellate Division,
emphasizing the failure

of plaintiff and his counsel "to

discontinue the action after being

specifically advised by defendant's attorney that the claim was baseless," 137 A.D.2d at 219,
reversed the lower court's denial

of sanctions

under CPLR 8303-a, and remanded for

determination as to the amount of sanctions. "From the outset of this action

it was or should

have been apparent to plaintiff and his counsel that these issue[s] could [not] be resolved in his

favor." Id. Thus, like Mitchell,this action is frivolous. Sanctions should be imposed. Id.
220. ("we hold that sanctions
are mandated after a

at

finding of frivolousness").

Given the dispositive application of constitutional free speech principles here,l this
lawsuit is tantamount to harassment with the apparent intent to punish Defendant's exercise of his core First Amendment rights in making statements critical of Plaintiff s proposed real estate
development project. Plaintiff should not be permitted to burden either the Court or Defendant

by prosecuting his frivolous claims. Grasso v. Mathew, 164 A.D.2d at 480 ("the sanction
provisions of CPLR 8303-a , .

are intended

to prevent waste of judicial resources and reduce

expense in opposing frivolous claims").

Plaintiff s utter disregard for the First Amendment and controlling precedent from this
State's highest court and its appellate courts must not be tolerated. Because

other than his

t6

Because of the imporlant First Amendment considerations involved, New York appellate courts have often granted sanctions pursuant to CPLR 8303-a in defamation actions determined to be frivolous. Patane v. Grffin, 164 A.D.2d 192,196-91 (3d Dep't 1990) (affirming CPLR 8303-a sanctions against libel plaintiff because "the patently false factual allegations in the complaint and the absence of evidence of malice on the part of the defendants amply support a finding that plaintiff was aware that the actions were without reasonable basis in law or fact"); Grasso v. Mathew, 164 A.D.2d 476,480 (3d Dep't l99l) (awarding CPLR 8303-a sanctions upon the finding that "whether true or not, the challenged statement so clearly became absolutely privileged, as a

matter of law, that under no circumstances could a libel claim be supported"); Posner v. New York Law Publishing Co.,228 A,D.2d 318, 318 (1st Dep't 1996) (holding that hyperbolic commentary "on a subject of public controversy" was "constitutionally protected opinion" and finding that "costs were properly assessed by the motion couft"). See also Carniol v. Carniol, 288 A.D.2d 421, 421-22 (2d Dep't 2001) (remitting for sanctions where "plaintiffs complaint failed to set fofth any cognizable claim for defamation" and the complained of statements were absolutely privileged).

37

apparent disagreement with (or misunderstanding

of)

established constitutional principles

Plaintiff has failed to offer either (a) any compelling good faith arguments that his defamation
causes

of action have a legitimate basis under existing law, or (b) any persuasive

reason to

reexamine well settled precedent in light of changed circumstances, sanctions are mandatory.

Nhitray v. New York Athletic Club, 274 A.D.2d 326, 327 (lst Dep't 2000) ("Once there is

finding of frivolousness, sanction is mandatory, especially in the wake of frivolous defamation

litigation.") (citations omitted); Rittenhouse v. St. Regis Hotel Joint Venture, 180 A.D.2d 523,
525 (lst Dep't 1992) ("frivolous and baseless actions

will not be tolerated and will result in a

v.

strict application of the provisions of CPLR 8303-a"); Entertainment Partners Group, Inc.

Davis,155 Misc.2d894,898 (N.Y. Co. Sup. Ct.,7992),aff'd,198 A.D.2d 63 (lstDep't 1993)

(affirming sanctions of $10,000 under CPLR 8303-a for Plaintiff s filing of SLAPP action;
case

was dismissed shortly before enactment of anti-SLAPP statute); Mitchell v. Herald Co., 737 A.D.2d at219-20. Accordingly, the costs of defending this matter, including reasonable attorneys' fees,

"shall" be awarded to Defendant pursuant to CPLR 8303-a. Millennium of Rochester, Inc. v.

Town of [Mebster, 305 A.D.2d 1014, 1015 (4th Dep't 2003) (emphasis supplied).

CONCLUSION
The decisions of the New York Court of Appeals expansively applying the constitutional

opinion privilege to assure "immunity for statements of opinion relating to matters of public
concern" are dispositive here. Immuno 11,77 N.Y.2d at 242. Like the letter to the editor at issue

in Immuno II, supra, the op-ed expos at issue in Brian v. Richardson, suprq and the similar
public comments made during the community board hearing at issue in 600 lest l55th Street

Corp.

v.

Von Gutfeld,

supra, Defendant's "Gold Rush!" letter distributed to the Town of

38

Halfmoon Board on or about August 1,2012, and his oral remarks to the Board during its public
comment session on October 3,2012, are

closely related in spirit to the "marketplace of ideas" and oversight

and informational values that compelled recognition

of

the

premises fully dsclosed, rebuttal openly nvited-free of defmation litgaton. A publication that provides a forum for such statements on controversial matters is not acting in a fashion "at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to
be effected," but to the contrary is fostering those very values.

privileges of fair comment, fair report and the immunity accorded expression of opinon. These values are best effectuted by ccording defendant some ltitude to [speak] on mtter of legitimte public concern-the [speaker'sJ affilton, bs nd

Immuno 11,77 N.Y.2d at255 (emphasis supplied) (citation omitted).

Based on the foregoing reasons, Defendant Bruce Rischert respectfully requests that, in

addition to granting his motion for summary judgment pursuant to CPLR 32I2(h) and dismissing the Complaint in its entirety as a matter of law, the Court award appropriate sanctions, including
costs and attorneys' fees, against Plaintiff for undertaking and continuing this frivolous action,

without substantial basis in fact and law as required by Civil Rights Law $ 70-a or, in the
alternative, without reasonable basis in fact and law as required by CPLR 8303-a, together with
such other and further relief as the Court may deem just and proper

Dated: March 72,2073

Albany, New York

GREENBERG TRAURIG, LLP

B
J

ttorneys 54 State St., 6th Floor Albany, New York 12207 Phone: (518) 689-1400 grygielm@gtlaw.com
ALB 1672357v1

Rischert

39