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A05991 Summary:

COSPNSRSeawright, Abinanti, Lupardo, Simotas, Taylor, Steck, Otis
Amd §§70-a & 76-a, Civ Rts L; amd R3211, CPLR
Requires awarding of costs and attorney fees in frivolous actions involving public petition and participation; expands application of actions involving public petition and participation.
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A05991 Text:

                STATE OF NEW YORK
                                                                Cal. No. 226
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 26, 2019
          TAYLOR,  STECK -- read once and referred to the Committee on Judiciary
          -- ordered to a third reading, amended and ordered reprinted,  retain-
          ing its place on the order of third reading

        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:
     1    Section 1. Paragraph (a) of subdivision 1 of section 70-a of the civil
     2  rights  law,  as added by chapter 767 of the laws of 1992, is amended to
     3  read as follows:
     4    (a) costs and attorney's fees [may] shall be recovered upon  a  demon-
     5  stration,  including an adjudication pursuant to subdivision (g) of rule
     6  thirty-two hundred eleven or subdivision (h) of rule thirty-two  hundred
     7  twelve  of  the  civil practice law and rules, that the action involving
     8  public petition and participation was commenced or continued  without  a
     9  substantial  basis  in  fact  and  law  and  could not be supported by a
    10  substantial argument for the  extension,  modification  or  reversal  of
    11  existing law;
    12    §  2.  Subdivision 1 of section 76-a of the civil rights law, as added
    13  by chapter 767 of the laws of 1992, is amended to read as follows:
    14    1. For purposes of this section:
    15    (a) An "action involving public petition  and  participation"  is  [an
    16  action,]  a  claim[,  cross  claim  or  counterclaim for damages that is
    17  brought by a public applicant or permittee, and is materially related to
    18  any efforts of the defendant to report on, comment on,  rule  on,  chal-
    19  lenge or oppose such application or permission] based upon:
    20    (1)  any communication in a place open to the public or a public forum
    21  in connection with an issue of public interest; or
    22    (2) any other lawful conduct in furtherance of  the  exercise  of  the
    23  constitutional  right  of  free  speech  in  connection with an issue of
    24  public interest, or in furtherance of the exercise of the constitutional
    25  right of petition.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 5991--A                          2
     1    (b) ["Public applicant or permittee" shall mean  any  person  who  has
     2  applied for or obtained a permit, zoning change, lease, license, certif-
     3  icate or other entitlement for use or permission to act from any govern-
     4  ment  body,  or  any  person with an interest, connection or affiliation
     5  with  such  person  that  is  materially  related to such application or
     6  permission] "Claim" includes any lawsuit, cause of action,  cross-claim,
     7  counterclaim, or other judicial pleading or filing requesting relief.
     8    (c)  "Communication"  shall mean any statement, claim, allegation in a
     9  proceeding, decision, protest, writing, argument,  contention  or  other
    10  expression.
    11    [(d)  "Government  body"  shall  mean any municipality, the state, any
    12  other political subdivision or agency of such, the  federal  government,
    13  any  public  benefit  corporation,  or  any  public authority, board, or
    14  commission.] (d) "Public interest" shall be construed broadly, and shall
    15  mean any subject other than a purely private matter.
    16    § 3. Subdivision (g) of rule 3211 of the civil practice law and rules,
    17  as added by chapter 767 of the laws of  1992,  is  amended  to  read  as
    18  follows:
    19    (g)  [Standards]  Stay  of  proceedings  and  standards for motions to
    20  dismiss in certain cases involving public petition and participation. 1.
    21  A motion to dismiss based on paragraph seven of subdivision (a) of  this
    22  section,  in  which  the  moving party has demonstrated that the action,
    23  claim, cross claim or counterclaim subject to the motion  is  an  action
    24  involving  public petition and participation as defined in paragraph (a)
    25  of subdivision one of section seventy-six-a of  the  civil  rights  law,
    26  shall  be granted unless the party responding to the motion demonstrates
    27  that the cause of action has a substantial basis in law or is  supported
    28  by  a substantial argument for an extension, modification or reversal of
    29  existing law. The court shall grant preference in the  hearing  of  such
    30  motion.
    31    2. In making its determination on a motion to dismiss made pursuant to
    32  paragraph  one  of this subdivision, the court shall consider the plead-
    33  ings, and supporting and opposing  affidavits  stating  the  facts  upon
    34  which the action or defense is based. No determination made by the court
    35  on  a motion to dismiss brought under this section, nor the fact of that
    36  determination, shall be admissible in evidence at any later stage of the
    37  case, or in any subsequent action, and no burden of proof or  degree  of
    38  proof  otherwise  applicable  shall be affected by that determination in
    39  any later stage of the case or in any subsequent proceeding.
    40    3. All discovery, pending hearings, and motions in the action shall be
    41  stayed upon the filing of a motion made pursuant to  this  section.  The
    42  stay shall remain in effect until notice of entry of the order ruling on
    43  the  motion.  The  court,  on  noticed  motion and upon a showing by the
    44  nonmoving party, by affidavit or declaration under  penalty  of  perjury
    45  that, for specified reasons, it cannot present facts essential to justi-
    46  fy  its  opposition,  may  order  that  specified discovery be conducted
    47  notwithstanding this subdivision. Such discovery, if granted,  shall  be
    48  limited to the issues raised in the motion to dismiss.
    49    4.  For  purposes  of  this section, "complaint" includes "cross-comp-
    50  laint" and  "petition",  "plaintiff"  includes  "cross-complainant"  and
    51  "petitioner",  and  "defendant" includes "cross-defendant" and "respond-
    52  ent."
    53    § 4. This act shall take effect immediately.
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