Bruce vs. Bruce

7/29/2019 Bruce vs. Bruce

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STATE OF NEW YORKSUPREME COURT COUNTY OF SARATOGABRUCE TANSKI

Plaintiff,- against -

BRUCE RISCHERTDefendant.

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

Index No.: 2012-4191

GREENBERG TRAURIG, LLPMichael J. Grygiel, Esq.Attorneys for DefendantBruce Rischert54 State St., 6th FloorAlbany, New York 12207Phone: (518) [email protected]


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TABLE OF CONTENTSTABLE OF CONTENTSPRELIMINARY STATEMENTSTATEMENT OF FACTS..ARGUMENTPOINT I SUMMARY JUDGMENT PROMOTES SIGNIFICANT FIRSTAMENDMENT INTERESTS IN DEFAMATION ACTIONS ....

A. Summary Disposition of Defamation Claims Is The Rule inNew York State.B. Plaintiff Cannot Satisfy the Elements of a Defamation Claim UnderNew York State Law.

POINT II THE CHALLENGED STATEMENTS ARE EXPRESSIONS OF OPINIONENTITLED TO ABSOLUTE CONSTITUTIONAL PROTECTIONA. The Constitutional Opinion Privilege.

The New York State Constitution Affords Broader Protection toStatements of Opinion Than the Federal Constitution.................,Determination of the Opinion Privilege Is a Question of Law.. 11

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CD The Context in Which the Statements Complained Of Were Made - InCommunications to the Halfmoon Town Board Opposing Plaintifls

Real Estate Development Application - Clearly Signaled That TheyV/ere Subjective Opinion. ............(1) The Broader Social Setting of the Statements: Public Meetingsof the Halfmoon Town Board........(2) The Immediate Context of the Statements: Ongoing PublicControversy Over the Proposed "Anna's Place" ResidentialDevelopment Project.The "Gold Rush!" Letter Submitted to the Halfmoon Town BoardContains Nonverifiable Criticism That Constitutes Protected Opinion.

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(1) The Use of Rhetorical Hyperbole and Exaggerated, FigurativeLanguage Clearly Indicates Protected Opinion.

(2) The Word "Admits" Reinforces that Certain StatementsComplained of Are Protected Expressions of Opinion..

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

(1) The Constitutional Opinion Privilege is Dispositive of Plaintiff sDefamation Claims.

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POINT III

POINT IV

CONCLUSION

The Statements Complained of Are Classic, Nonactionable "PureOpinion" Based on Information in the Public Domain..... ............23PLAINTIFF'S RETALIATORY DEFAMATION CLAIMS CONSTITUTEA STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION - A..SLAPP" SUIT - THAT SHOULD BE DISMISSED AS A MATTER OFLAV/; FEES, COSTS AND DAMAGES ARE WARRANTED 27A. This is a SLAPP Action. 27B. The Standard of Review. JJ

C. Defendant Is Entitled to Attorneys' Fees, Costs and Damages Underthe Anti-SLAPP Statute. 34IN THE ALTERNATIVE, AN AWARD OF COSTS AND REASONABLEATTORNEYS' FEES IS MANDATORY, NOT PERMISSIVE, TINDERCPLR 8303-A UPON A FINDING THAT AN ACTION V/AS FRIVOLOUS,AND SUCH AN AWARD IS APPROPRIATE IN THIS CASE.............................35

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

IntroductionIn 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, anoutspoken opponent of Plaintiffs controversial proposal to build a multi-unit apartmentsubdivision - known as "Anna's Place" - in the Town of Halfmoon. More specifically, Plaintiffalleges that certain statements in a "Gold Rush!" letter distributed by Defendant Bruce Rischertto the Halfmoon Town Board (first cause of action), and oral remarks made by Defendant at asubsequent public meeting of the Town Board (second cause of action), injured his reputation.(See Ex. 1 to Grygiel Aff., TT 36-54)t The Complaint is frivolous in the extreme and, asdiscussed more fully below, an affront to basic First Amendment principles. It should besummarily dismissed to avoid any inhibition on freedom of speech, the preferred approach to thedisposition of defamation cases by courts in New York State. See POINT I, infra.

Plaintiffs' defamation claims - a transparent quest for retribution masquerading as alawsuit - betray a fundamental misunderstanding of established constitutional principlesrequiring dismissal of the Complaint, His ill-advised attempt to impose liability based onDefendant's speech addressing a legitimate matter of public concern - i.e., the developmentpolicies pursued by the Town of Halfmoon and implicated by Plaintiff s application to construct

The March 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 anddamages pursuant to CPLR 70-a(1) are referred to herein by paragraph, respectively, as "(Rische Aff.,I "_")" and "(Grygiel Aff., 1[ " _")".


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"Anna's Place" - is incompatible with the First Amendment. It ignores that the exchange ofinformation between citizens and local government bodies which Plaintiff seeks to transform intothe basis of a $2.5 million damages award is at the heart of our system of democratic self-govemance, for it enhances the accountability of government offrcials to the people whom theyrepresent. In a nation that so highly values and so passionately protects public discourse, it isdifficult to conceive of a more constitutionally threatening sort of legal claim than thoseespoused by Plaintiff here, which would stifle debate at the heart of the First Amendment.

Summary of ArgumentDefendant 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 anaward 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 Complaintindiscriminately challenges statements which are clearly not actionable by virtue of theconstitutional opinion privilege - a privilege which is expansive under the First Amendment, andabsolute under Article I, Section 8, of the New York State Constitution. In doing so, it ignoresthe established distinction between protected expressions of opinion and potentially unprotectedassertions of fact. See POINTS II A.-E., infra. As elaborated below, Plaintifls real quarrel withMr. Rischert's statements is less with any supposedly false statements of objective, verifiablefacts, and more with what he apparently thinks are unfair criticisms concerning his track recordas a builder and developer in the community. Plaintiff is, of course, entitled to take issue withthose opinions critical of his tenant management style and of the "Anna's Place" developmentproposal. What he is not entitled to do, however, is to maintain a libel and slander suit againstDefendant over them. The statements Plaintiff has put at issue essentially involve a

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disagreement over the advisability of his real estate development proposal and the propriety ofhis conduct as a landlord. As such, they are subjective evaluations and assessments of publicissues 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 WarrantedDespite 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), Plaintiffpersisted in continuing this action in complete disregard of the First Amendment's unwaveringprotection of speech on public issues. The constitutional guarantee of free speech has its fullestand most urgent application in maintaining " 'the opportunity for free political discussions to theend 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 essenceof self-government." Garrison v. State of Louisiana, 379 U.S. 64, 74 (1964). Appropriatesanctions should therefore be awarded as authorized by New York's law prohibiting StrategicLawsuits 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 thistargeting protected commentary on matters related to public petition and participation. Thatstatute and related provision CPLR 3212(h) subject SLAPP suits to enhanced scrutiny, shiftingthe burden and requiring Plaintiff to come forward and demonstrate a "substantial basis" in lawfor his claims in order to survive a motion for summary judgment. CPLR 3212(h); Civil RightsLaw $ 70-a(1)(a). Plaintiff is unable to meet that burden here. See POINT III A., infra.

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By its terms, the anti-SLAPP law expressly applies to actions which are directly relatedto Mr. Rischert's commentary on the activities of Plaintiff as a "public applicant." Civil RightsLaw $ 76-a(1). The defamation claims asserted here, designed to punish and chill speech onmatters related to Plaintiff s controversial application to the Town of Halfmoon Planning Boardfor approval to proceed with the construction of "Anna's Place," are precisely the sort the anti-SLAPP statute exists to discourage. The anti-SLAPP statute also allows Defendant to recoverhis 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 inthis litigation will only be vindicated by an award of attorneys' fees, costs, damages and/or othersanctions pursuant to the anti-SLAPP law. Id.

In the final analysis, this lawsuit blatantly disregards that the First Amendment's corevalues protect the free flow of ideas on matters of public interest and concern. Plaintiflsdefamation claims proceed on a theory of recovery that subverts constitutional free speechprinciples by threatening to confine community discussion of the impact of his proposed realestate development project within rigid boundaries of acceptable (as deemed by Plaintiff)language and by shifting critical evaluation of his conduct as a landlord out of the marketplace ofpublic discourse and into the courtroom. Contrary to what Plaintiff is urging upon this Court, theFirst Amendment flatly prohibits any such sanitizing of speech on public issues. His libel andslander claims are patently frivolous, were devoid of merit at their inception, and have beenegregiously continued for the purpose of harassing an opponent who he evidently sees asstanding in the way of getting his major subdivision application approved by the Town ofHalfmoon Planning Board. Plaintiffls claims not only constitute a misuse of and burden onjudicial resources, but have placed a substantial burden on Mr. Rischert in defending them. For

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the reasons presented below, the Court should grant Defendant summary judgment dismissingthe Complaint in its entirety as a matter of law, along with an award of appropriate sanctionspursuant to Civil Rights Law $ 70-a(1) or, in the alternative, pursuant to CPLR8303-a. SeePOINTS III B. and lY, infra.

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

to on March 1 1 , 20 1 3, and submitted in support of this motion. Those facts are incorporated byreference herein.

ARGUMENTPOINT I

SUMMARY JUDGMENT PROMOTES SIGNIFICANT FIRST AMENDMENTINTERESTS IN DEFAMATION ACTIONSA. 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, andtherefore encourage the granting of summary judgment in such actions. Immuno AG. v. Moor-Jankowski, 145 A.D.2d 114, 127 (1st Dep't 1989) ("The importance of summary judgment in thecontext 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'),2cert. 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 UnitedStates Supreme Cour1, 77 N.Y.2d at 256 (emphasis supplied) (citations omitted):Finalfy, we retffirm our regrd for the ptrtcular value of summary judgment, whereappropriate, in libel cses. Indeed, this is an additional ground for preferring the independent Statelaw approach to one that might make summary disposition less likely.

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reqrg. denied,52 N.Y.2d 899 (1980) ("We must not be reluctant to apply the ordinary rulesgoverning 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, ashere, the case involves claims arising out of speech addressing matters of legitimate publicconcern, "cherished First Amendment freedoms" are involved and the Court should be"especially sensitive to see that summary judgment [is] granted if evidentiary facts sufficient toraise 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 significantrole in protecting against spurious lawsuits and has particular value in countering "the chillingeffect 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. Cityof New York, 10I A.D.2d 175, 181 (lst Dep't 1984) ("courts should not be oblivious to thecrippling financial burden" entailed by defense of defamation claims and the "consequentchilling 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 appropriatewith respect to Plaintiffs defamation claims here because public discussion about the futurecourse of residential development and land use activities in the Town of Halfmoon presents thestrongest possible case for the application of First Amendment safeguards.

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B. Plaintiff Cannot Satisff the Elements of a Defamation Claim UnderNew York State Law.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 tothe plaintiff. Meloff v. New York Life Ins. Co.,240 F.3d 138, 145 (2d Cir. 2001); Jee v. New YorkPost Co., 176 Misc.2d253,260 (N.Y. Co. Sup. Ct., 1998), aff d,260 A.D.2d 215 (1st Dep't),|v. toapp. 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 submittedby Defendant in support of this motion require the dismissal of Plaintifls defamation claims asa matter of law for failure to satisfy these requirements, including a threshold demonstration thatthe challenged statements are factual in nature. Indeed, this case - where Defendant isimmunized from defamation liability because the statements at issue are constitutionallyprotected expressions of opinion, and were therefore incapable of being published with theconstitutionally requisite degree of fault - bluntly highlights the

propriety of an award ofsummary judgment.

POINT IITHE CHALLENGED STATEMENTS ARE EXPRESSIONS OF OPINIONENTITLED TO ABSOLUTE CONSTITUTIONAL PROTECTIONThe Complaint disputes Defendant's statements to the Halfmoon Town Board that are

clearly not actionable by virtue of the constitutional opinion privilege. When considered (asthey 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 andFederal constitutional free speechguarantees...." Immuno 11,77 N.Y.2d at239. Further,the

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statements at issue are "pure opinion" based on facts widely disseminated in the public domain, andare thus absolutely protected as a matter of law. Under the First Amendment, "[h]oweverpernicious an opinion may seem, we depend for its correction not on the conscience of judgesand 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, summaryjudgment 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 expressionsof an opinion 'false or not, libelous or not, are constitutionally protected and may not be thesubject of private damage actions.' " Steinhilber v. Alphonse,6S N.Y.2d 283,286 (1986) (quotingRinaldi v. Holt, Rinehart & Winston, Inc.,42 N.Y.2d 369, 380 (1977)). Under both the Federaland New York Constitutions, only statements that are demonstrably false are actionable."Because falsity is a necessary element in a defamation claim involving statements of publicconcem, it follows that only statements alleging facts can properly be the subject of a defamationaction." 600 W. I I5th Street Corp. v, Von Gutfeld, S0 N.Y.2d 130, 139, rearg. denied,81 N.Y.2d759 (1992), cert, denied,508 U.S. 910 (1993).

The rationale for the rigorous insistence on a distinction between fact and opinion was setforth by the Court of Appeals both in Immuno I and Von Gutfeld, In the former case, the Courtnoted that "unlike assertions of fact, ideas or opinions merit protection for their role in acompetition or marketplace of ideas, as stimulants of 'uninhibited, robust and wide-open debateon public issues.' " 74 N.Y.2d at 556. It continued:

In reviewing the underpinnings for the distinction between fact andopinion, moreover, it is above all important to bear in mind that theexercise is not merely one in semantics. Several courts and8


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commentators have criticized as inadequate any analysis that doesnot give central significance to the role played by the challengedstatements in public debate, or to the "core value" of the free speechguarantee.

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 apartmentcomplex for which Plaintiff was seeking consttuction approval from the Town of HalfmoonPlanning Board - a project which Defendant opposed. "Urging a governmental entity to take aparticular action on a pending permit application is manifestly" speech protected under the FirstAmendment. 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 publicissues, and, second, a strong interest in debate about those persons who are in a positionsignificantly to influence the resolution of those issues."). As set forth more fully below, thestatements Plaintiff alleges are defamatory could not be understood by the reasonable reader orlistener to be advanced as statements of fact. Immuno 11,77 N.Y.2d at 254 ("statements must firstbe viewed in their context in order for courts to determine whether a reasonable person wouldview them as expressing or implying ny facts") (emphasis in original). Rather, they are fullyprotected expressions of opinion made in the context of an ongoing community debate overPlaintiff s application to proceed with a controversial real estate development proposal. (RischertAff., 1[T "11-15") The statements are therefore nonactionable commentary "that no reasonablereader would have regarded . , ., in their context, as factual." Immuno II, 77 N.Y.2d at 245(emphasis in original).

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B. The New York State Constitution Affords Broader Protection to Statements ofOpinion Than the Federal Constitution.Supplementing the protection available to the challenged statements under the First

Amendment is that provided by the New York State Constitution - and in particular, Article I,Section 8 - which, for statements of opinion, is broader than that required by the First Amendment.Immuno II, 77 N.Y.2d at 249 (citing O'Neill v. Oakgrove Construction, Inc., 7l N.Y.2d 527,529n.3 (1988)). Seealso600W. ll5thStreetCorp.v.VonGutfeld,S0N.Y.2dat136 (notingthat with respect to "constitutionally protected opinion," "this Court perceives the protectionafforded by the First Amendment . . and that afforded by article I, $ 8 of the New YorkConstitution to be quite different"). That choice was driven by a tradition in New York of aparticularly vibrant and diverse speech marketplace, Arcara v. Cloud Books,68 N.Y.2d 553,557-558 (1986), and reflected the "'sensitive role of gathering and disseminating news of publicevents.' " 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 personwould 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 wordsexpress 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, theCourt of Appeals has expansively construed the State constitutional opinion privilege morebroadly than its Federal counterpart so as to protect "the cherished constitutional guarantee offree speech." Immuno 11,77 N.Y.2d at250,256. "This Court has adopted a. . . view under our

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own State Constitution and has embraced a test for determining what constitutes a nonactionablestatement 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,2l5A.D.zd 614, 614 (2d Dep't 1995) ("Expressions of pure opinion are afforded greater protectionunder the New York State Constitution than under the Federal Constitution.") (emphasissupplied); Levin v. McPhee, 917 F.Supp. 230,240 (S.D.N.Y. 1996) ("New York's Court ofAppeals has held that opinion receives greater protection under the New York than under theUnited 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 mattersof public concem, the dispositive inquiry under either the First Amendment or New Yorkconstitutional law is "whether a reasonable freader]...could have concluded that [the statementswerel 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 commentarycomplained 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 particularstatement 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 thecourt"); Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d at 381; Kuan Sing Enterprises, Inc. v.T.W. Wang, Inc., 86 A.D.2d 549, 549-550 (lst Dep't), aff'd, 58 N.Y.2d 708 (1982); Lapar v.Morris, 119 A.D.2d 635, 636 (2d Dep't 1986); Kim v. Dvorak,230 A.D.2d 286,291 (3d Dep't1997); 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

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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 EstateDevelopment 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 tosignal ... readers... thatwhatisbeingread... islikelytobeopinion, not fact."' Rappaportv.W Publishing Corp., 163 Misc.2d 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 toconsider "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 andvigorous exposition and expression of opinion on matters of public interest.' " Immuno 11,77N.Y.2d at 255 (citation omitted). Its application here underscores that citizens have aconstitutional right to engage in the discussion of public issues and to vigorously and tirelesslyadvocate their own positions on matters that impact the quality of life in their community. Allanand Allan Arts Ltd. v. Rosenblum,2}I A.D.2d 136, 143 (2d Dep't 1994) ("we are also advancingthe important public policy of encouraging the active participation of the citizenry in issuesaffecting 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 theHalfmoon 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

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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 expressedwere assertions of objective fact, the setting in which the statements were made - a"'traditionalhaven for cajoling, invective, and hyperbole,' " Immuno II, 77 N.Y.2d at 244 - conf,trms thatDefendant 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, opendialogue 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 listenersarrive armed with the knowledge that the deliberations are inpogress, that no expertise is required of those who choose tospeak, and that robust, controversial debate is expected andfrequently encouraged. In short, reasonable listeners in suchcircumstances 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. Theyare not expected to parse carefully each statement for fact andopinion; they are expected to be reluctant to conclude - absentclear clues to the contrary from the words or context - that thestatements 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'ssubsequent oral comments to the Town Board presented "diversified forms of expression andopinion" on a matter of general public interest in contributing to the debate over the "Anna'sPlace" 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 FirstAmendment has come to have as its central metaphor the New England town meeting, where citizens can comeforward to be heard in a full and free debate of matters of civic concern." 80 N.Y.2d at 137 . As did the publichearing in VonGutfeld, the open community forum provided by public sessions of the Halfmoon Town Boardembodies the marketplace of ideas and "is, in essential ways, the [contemporary] equivalent of that townmeeting." Id.13


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statements were made by a citizen speaker where "the forum was an offrcial governmentalsession" open to the public, the statements plainly constituted protected rhetoric and opinionrather than objective fact. Von Gutfeld, 80 N.Y.2 d at 141.

(2) The Immediate Context of the Statements: Ongoing PublicControversy Over the Proposed "Anna's Placett ResidentialDevelopment 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 53. Defendant'sstatements were made within the context of an ongoing community debate over the advisabilityand feasibility of the "Anna's Place" project. Indeed, Plaintiff withdrew his initial buildingapplication 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 discussionimmediately informed citizens that what they were reading was exaggerated and polemicizedopinion. "'Where, as here, the fSaratoga County] citizenry,. . . was engaged in heated debateover 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.3d10074, 2004 N.Y.Misc. LEXIS 257, *8 O{.Y. Co. Sup. Ct.,2004). This context powerfullysignaled the relevant audience that Defendant was offering his subjective criticism of Plaintiflsresidential construction project - not objective statements of facts. Indeed, the fact that thestatements were made in the midst of an ongoing public debate featured in Halfmoon TownBoard 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 Boardwere issued in his personal capacity, Defendant was also a member of a local grassroots

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

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organization opposed, in particular, to the "Anna's Place" project and, more generally, to theunchecked 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 respondingspontaneously and directly to comments made at that meeting by the manager of one ofPlaintiffs rental properties extolling its virtues. Against this backdrop, the reasonablereader/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 ContainsNonverifiable 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:

"A search of apartment reviews support his own claim of being asub par builder, look at the transcripts from the planning boardmeeting on July 9th,20012 [sic], where he admits to not being ableto build single family homes because of the poor construction heprovides and therefore he can't sell single family homes.""His solution is to dump his poorly built and managed multidwelling housing units on the town of Halfmoon, because to himit'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 thespeaker's statements are subjective opinion rather than fact. See Immuno I, supra, and Immuno II, supra (factthat plaintiff s proposed animal experiments generated a controversy known to readers and that author of acritical letter to the editor was known to be an animal rights activist would "induce the average reader of thisJournal 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 mistreatedhis carriage horses were opinion since they were "expressed as part of an ongoing controyersy and designedprimarily to persuade").

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However, in the context in which they were made, the statements that Plaintiff is a"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 areasonable reader to be assertions of fact, but are instead amorphous, value-laden, and subjectivecriticisms of Plaintifls record as a builder. Park v. Capital Cities Communications, Inc., 181A.D.2d 192, 196 (4th Dep't), app. dismissed, S0 N.Y.2d 1022 (1992). They merely reflectsubjective assessments that Plaintiff fails adequately to perform certain responsibilities as adeveloper and landlord, and are incapable of being objectively verified as true or false.Rappaport v. W Publ. Co.,223 A.D.2d 515, 515-16 (lst Dep't 1996); Moruison v. Poullet,229A.D.2d 599, 599 (2d Dep't 1996). As such, they are "clearly a personal expression of [thespeaker's] disapproval of plaintiff['s] flandlord] services and were, therefore, notactionable." Behr v. Ieber, 172 A.D.2d 441, 443 (lst Dep't), app. denied,78 N.Y.2d 861(1991). Plaintiff is constitutionally precluded from a recovery against Mr. Rischert based on hisexpression of opinions, "no matter how unreasonable, extreme or erroneous these opinions mightbe." 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 adefamation 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) (statementpolice 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 followingstatement 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."'

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191 A.D.2d at 628 (emphasis supplied). The statement was published in a newspaper articlediscussing DEC's regulatory policies "concerning tidal wetlands and the shorelines on LongIsland." Id. at 629. The appellate court held that the statement was protected opinion:

In the context in which the alleged defamatory statement wasmade, an average reader would understand it to be part of thecriticisms, accusations, and counter-accusations which had becomepart of the public controversy surrounding Region I's enforcementof DEC regulations. "The statement complained of will be 'readagainst the background of its issuance' with respect to 'thecircumstances of its publication,' " and"'[t]he construction whichit behooves a court of justice to put on a publication which isalleged to be libeleous [sic] is to be derived as well from theexpressions used as from the whole scope and apparent object ofthe 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 - in the context of asubmission to the Halfmoon Town Board - as "part of the criticisms, accusations and counter-accusations which had become part of the public controversy surrounding" the impact on thecommunity 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. Rischertdid in his "Gold Rush!" letter - that he does not properly build or maintain his properties and isunresponsive to tenants is to express an opinion regarding his performance as a developer andlandlord. 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 alsoMcGill v. Parker,ITg A.D.zd at 110 ("[n]o reasonable person ... would find [the comments] tobe anything other than highly partisan expressions of opinion").

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(1) The Use of Rhetorical Hyperbole and Exaggerated, Figurative LanguageClearly 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 exaggeratedhyperbole throughout to protest the "Anna's Place" project as incompatible with what he viewedas an acceptable residential development policy in the Town of Halfmoon. Throughout theletter,T "[t]he tone is ... exaggerated, and heavily laden with emotional rhetoric and moraloutrage." 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 "wereseeking zoning and land use approvals to construct 700 residences including multiple familydwellings, two commercial plazas and a nursing home on a 288 acre parcel of land in the Townof Amherst." Id. Defendant distributed two flyers opposing the construction projectapplications, which respectively stated the following:

. "Now is the time to act and ,.. preserye the beauty and peacefullife of Amherst from @." Id.; emphasis inoriginal.. "[T]his project is still being pushed by proit hungry developers towhom your life and mine is of no concern [slc] instead theyworship profit at any cost to others." Id.; emphasis supplied."In determining whether speech is actionable, courts must additionally consider the impression created by thewords 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 itis the emotionally chargedrhetoric of protest: e.g.,"fffhe land is being stripped as if there is gold in the hills ofHalfmoon;" "[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)

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Defendant also circulated a third flyer which "contained a cartoon depicting three men withHitler moustaches on a bulldozer running over a deer calling for help," and one of the men "hadmoney coming out of his pockets." Id. The Appellate Division overturned the lower court'sdenial of a defense motion for summary judgment and dismissed the plaintiffs' defamationclaims as a matter of law:

Supreme Court should have dismissed the complaint because thestatements contained in the flyers and the depiction in the cartoonas a matter of law were not defamatory but were constitutionallyprotected opinion on a subject of public controversy. The phrase"@" does not contain a provably falsefactual connotation, cannot reasonably be interpreted as statingactual facts and is the sort of "loose, figurative or hyperboliclanguage" that is constitutionally protected opinion.

Id. at 1229-30 (citations omitted) (emphasis in original). As in Lenkei, the statements challengedby the instant Complaint "cannot be interpreted as anything other than fDefendant's] opinionconcerning 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 "rhetoricalhyperbole" and "imaginative expression" signals to the reader that what is being expressed ispartisan advocacy, not fact. Immuno II, 77 N.Y.2d at 244 (use of hyperbole "signalfs] thereasonable observer that no actual facts were being conveyed about an individual"); Lukashok v.Concerned Residents of North Salem, 160 A.D.2d 685, 686 (2d Dep't 1990) (statements thatdeveloper chose "malicious methods" and resorted to "terrorism" by suing each member of townboard "'were merely figurative" expression and thus nonactionable); Albano v. Sylvester,222A.D.2d 472, 475 (2d Dep't 1995) (held, statements by school board trustee that principal'stransfer of children from elementary school to another school without first contacting theirmother was a "cruel" and "inhumane" act are rhetorical hyperbole rather than objective fact andthus constitutionally protected). See also Greenbelt Cooperative Publ. Assoc. v. Bresler,

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398 U.S. 6, 7 (1970) (use of word "blackmail" to describe negotiating position of plaintiff, a"prominent local real estate developer," with respect to a controversial building project notdefamatory 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 amongresidential property owners that plaintiff was "a ctiminal" who was "engaged in criminalconduct" and had "committed crimes" against the property "constitute opinion and are notactionable as a matter of law").

The remarks challenged here have all the hallmarks of impassioned opinion that iscommon 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' wordswere protected speech." Von Gutfel 80 N.Y.2d at 140. Beginning with the very title of theletter, the hyperbolic and figurative language employed throughout indicates that the statementsat issue are non-actionable opinion rather than objective fact. Polish American ImmigrationRelief Comm. v. Relax, 819 4.D.2d370,374 (lst Dep't 1993); Shinnv. Williamson,225 A.D.2d605, 606 (2d Dep't 1996); Trustco Bank v. Capital Newspapers Div. of the Hearst Corp.,2I3A.D.2d 940, 942 (3d Dep't 1995); see generally Immuno II, 77 N.Y.2d at 244. Even theComplaint's allegation that Plaintiff was portrayed as an "incompetent, greedy developer withno regard for construction practices" (Compl., n 4a; emphasis supplied) a gloss onMr. Rischert's comments, not what he actually said -- is " 'no more than rhetorical hyperbole oropinion, all too typically unfair in the treatment of an opponent, but which [is] not actionable.' "Cook v, Relin,280 ^.D.2d 897, 898 (4th Dep't 2001) (citation omitted); Rinaldi v. Holt, Rinehart& Winston,42N.Y.2d at 381 ("To state thal ajudge is ncompetent is to express an opinionregarding the judge's performance in office.") (emphasis supplied); Ansorian v. Zimmerman,2l5

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A.D.2d 614, 614 (2d Dep't 1995) (statements to the effect that plaintiff was "incompetent" as ateacher constituted personal opinion rather than objective fact) (emphasis supplied); Zuber v.Bordier,l35 A.D.2d 709,710 (2d Dep't 1987) (statements charging that plaintiff was "ill-suitedto teaching" and attacking her "competency as a teacher" found to be constitutionally protectedexpressions of opinion) (emphasis supplied).

(2) The Word "Admits" Reinforces that Certain Statements Complained ofAre 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. InMillus v. Newsday, the Court of Appeals repudiated the exact same argument as that espoused byPlaintiff here: "[wJe reject the contenton tht defendants' use of 'dmts' renders theallegedly defmtory statement one of fct rther thun n opinion as a mtter of lw.' 89N.Y.2d af 842 (emphasis supplied). Mr. Rischert's choice to use the word "admits" in thiscontext is plainly his characterization of what Plaintiff said during the Town Planning Boardmeeting 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, Millusreinforces that the statements are opinionated advocacy protected under the First Amendmentand New York State Constitution.F. The Oral Statement Made During the Halfmoon Town Board Meeting Is ProtectedBy the Opinion Privilege.

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

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a "[I]t was in support of actually Mr. Bruce Tanski's assertion thathe does not build to the standards of the other builders in the areaand 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 criticizingplaintiff s performance and comparing h[im] unfavorably to other flandlords] are, as a matter oflaw, nonactionable expressions of opinion." Miller v. Richman,184 A.D.2d 191, 193 (4th Dep't1992). Plaintiff s attempt to transform this spoken comment into the basis of a slander claim isbelied by Von Gutfeld's emphasis on the inherently opinionated exchanges of viewpointscharacteristic of public meetings:

Reasonable listeners come to a public hearing withexpectations 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 utteredthemselves, would lead reasonable persons to conclude that theywere witnessing a presentation of fact. Thus, given the loosenature of the language, the "general tenor" of the remarks made ata public hearing, and the skepticism a reasonable listener brings tosuch proceeding, we believe the second statement s not such thsta reasonable listener would conclude fctual assertions werebeing 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. Plaintiffsdisagreement with Mr. Rischert's observation conceming his motivations involves a matter "notreadily verifiable" and "intrinsically unsuited as a foundation for libel." Immuno 1,74 N.Y .2d at560. The New York Court of Appeals has expressly stated that speculative "inquiry intomotivation 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.

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1316, 1320 (S.D.N.Y. 19SS) (held, statement plaintiff aimed to "set up" brokerage houses "isnothing more than speculation about . . . motivations" and, as such, is a "clear statement ofopinion" 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 slipperyenterprise," and finding that magazine story's unarticulated "implication" that a criminalprosecution was motivated by revenge was too imprecise and unverifiable to be anything otherthan 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) andthe October 3,2012, Halfmoon Town Board meeting (second case of action), respectively, aleprotected under both the First Amendment and New York State Constitution because they arestatements of "pure opinion" based on facts -- including, inter alia, the previous legal actionbrought against Plaintiff by the United States for a series of building code violations, and thelitany of complaints lodged against him by tenants as reported on a national apartment ratingwebsite -- which were fully disclosed in the public domain. (Rischert Aff., lJf "8," "10" andExs. 15-16, 18) In NewYork State, "pure" opinions are absolutely privileged and will notsupport an action for defamation as a matter of law. "Statements expressing pure opinion areconstitutionally protected and therefore nonactionable, 'even if false and libelous, and no matterhow pejorative or pernicious they may be.' " Levittown Norse Assoc. v. Day Realty Corp.,150A.D.2d 263,264 (1st Dep't 1989) (citations omitted), app. denied, 75 N.Y.2d 703 (1990). Apure expression of opinion occurs when the parties to the communication know the facts orassume their existence and the statement is obviously based on those facts as justification for the

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opinion.s Such statements are "not actionable because . . . a proffered hypothesis that is offeredaft.er a full recitation of the facts on which it is based is readily understood by the audience asconjecture." 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)). See also Moldea v.New York Times Co.,75 F.3d ll37,ll44-45 (D.C. Cir. 1994) ("Because the reader understandsthat such supported opinions represent the writer's interpretation of the facts presented, andbecause the reader is free to draw his or her own conclusion based upon those facts, this type ofstatement is not actionable in defamation."). Classic examples of such "pure" opinions are thoseissued where, as here, the underlying facts are available in the public domain.e

Here, as a matter of constitutional law, the challenged statements are similarlyexpressions of "pure" opinion entitled to absolute immunity. The essential facts on whichMr. 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 hisother apartment properties - were widely accessible in the public domain, and known to thepublic. 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" entitledto absolute constitutional protection as "a statement of opinion which is accompanied by a recitation of the factsupon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be 'pureopinion' 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" derivesfrom the fair comment privilege, which was established at common law "primarily to protect public debate bysheltering 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 thatunduly burdensome defamation laws could stifle valuable public debate, the privilege of 'fair comment' wasincorporated 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 nonactionablereportage have been invoked to inform our modern constitutional anaysis") (citations omitted). The faircomment privilege "extends . . . to comments on facts that are common knowledge or readily accessible to thereader," 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 ONDEFAMATION, 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)).

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viewpoint based on publicly available information. The premise is explicit, and readers/listenerswere by no means required to accept Mr. Rischert's characterization of Plaintiff s record as alandlord 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 asinvolving 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, 262A.D2d at 375 ("The statements are not actionable because the facts upon which these allegedlydefamatory statements were based are fully and accurately set forth in the Newsletter and it isclear to a reasonable reader that the accusations are merely opinion and personal surmise builtupon those facts."),

In Levittown Norse Assoc. v. Day Realty Corp., supra, a real estate broker made thestatement that "'We might be interested but the owners of that property fplaintiff] are verydifhcult to deal with.' " The court determined that a newspaper's reporting of the statement wasprotected pure opinion:

Upon our review of these statements and the context in which theywere made, we conclude that they are not libelous as a matter oflaw. First, the statement that the owners "'are very dfficult todesl with"' is n expresson of pure opnon . . ..for the context nwhch it ppears does not mply that t s based upon undisclosedfacts. Statements expressing pure opinion are constitutionallyprotected 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. Thestatements are therefore readily understood as opinions which, "even if falsely and insincerelyheld, are constitutionally protected [since] the facts supporting the opinion are set forth."

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Rinaldi,42 N.Y.2d at 381. Moreovet, Mr. Rischert's oral comments to the Town Board onOctober 3rd of last year were made directly following and in response to those made at themeeting by Paula Davis, the manager of Halfmoon Heritage Apartments, who expressed herview 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 andprovides 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 immediateopportunity to air his competing view." Von Gutfeld, 80 N.Y.2d at 138. By its very nature, thisimpromptu give-and-take exchange establishes that Mr. Rischert's unflattering comparison ofPlaintiff s building standards to those of other builders and the accompanying assessment ofPlaintiffls financial motivation are on equal footing under the First Amendment with Ms. Davis'sfavorable 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!" letterand during the Town Board meeting in order to decide for themselves whether those opinionswere valid, thereby contributing to public discussion on a matter of public concern. Thestatements did not rest on any undisclosed facts. Lukashok v. Concerned Residents of NorthSalem, 160 A.D.2d at 686; Park v. Capital Cities Communications, 181 A.D.2d af 196-97, andtherefore "must receive the constitutional protection accorded to the expression of ideas." Zuberv. Bordier,l35 A.D.2d at710. This is the essence of pure opinion, which Plaintiff may not stiflethrough the instant litigation in a misguided attempt to avenge criticism of his record as a

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landlord and to suppress grassroots opposition to the proposed Anna's Place developmentproject:

Based upon the facts stated and public debate provoked by thestatements, each reader may draw his own conclusion as towhether [the author's] views should be supported or challenged.In short, the matter is subject to public debate. Plaintiff may notdelimit that debte by seeking to punish, through libel dmges,those who would contribute to the debate through the circulutionof 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 constitutionallyprotected. 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 StqteChiropractic 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 289. That rule is dispositive here and requires dismissal of theComplaint.

POINT IIIPLAINTIFF'S RETALIATORY DEFAMATION CLAIMSCONSTITUTE A STRATEGIC LAWSUIT AGAINST PUBLICPARTICIPATION - A "SLAPP" SUIT - THAT SHOULDBE DISMISSED AS A MATTER OF LAIJV; FEES, COSTSAND DAMAGES ARE WARRANTED

A. This is a SLAPP Action.New York, like numerous other states, has recognized the severe danger posed to freespeech when a party to a public controversy seeks to use the judicial process to silence or punishthose who publicly comment on that controversy through what is known as a "Strategic Lawsuit

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Against Public Participation," or "SLAPP" suit. Anti-SLAPP statutes are predicated on the ideathat it is not enough to simply allow the defendant in a SLAPP action to ultimately prevail urder thenormal standards of a motion for summary judgment, because forcing a defendant to endure theburden and expense of litigation is, in itself, a victory for the SLAPP plaintiff and a defeat for thedefendant. SLAPP actions ate "an attempt to 'privafize' public debate - a unilateral effort by oneside to transform a public, political dispute into a private, legal adjudication, shifting both forum andissues to the disadvantage of the other side." Pring & Canan, "Strategic Lawsuits Against PublicParticipation ('SLAPP'): An Introductionr Bench, Bar and Bystanders," 12 U. BntocEPoRTL. Rev. 937,941 (1992). Perhaps with unintended irony given his statement as a matter of publicrecord that he "would never attempt to limit another residents' [sic] right to free speech" (RischertAff., T "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 tothe work of Professor George W. Pring. See, e.g.,"SLAPPs: Strategic Lawsuits Against PublicParticipation," T Pacp ENvrl-. L. Rsv. 3 (1989). The first state to pass anti-SLAPP legislationwas Washington in 1989. Wash. Rev. Code $ 4.24.500-520 (2005). Currently thirty (30) statesand the territory of Guam have passed anti-SLAPP laws, and bills are pending or advocated inseveral additional states.l0 New York enacted its anti-SLAPP statute in 1992 with the objectiveof deterring retaliatory litigation, often brought under the guise of defamation claimsll andemployed 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 6, 2013), at


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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 "itto be the policy of the state that the rights of citizens to parlicipatefreely in the public process must be safeguarded with greatdiligence" and that "luws of the state must provde lhe utmostprotection for the free exercise of speech, pettion and assocutonrghts, particularly where such rights re exerced in a publcforum with respect to issues of public concern,"

Allan & Allan Arts v. Rosenblum,2}l A.D.2d af 143-44 (quotingL 1992, ch767, $ 1) (emphasissupplied). See also T.S. Haulers, Inc, v. Kaplan,Index No. 7313101,2001 N.Y. Misc. LEXIS405, 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 expressionsof opinion (see POINT II 4., supra) - is at one with the public policies that animate theanti-SLAPP statute. See Immuno 11,77 N.Y.2d at255 ("4 publication that provides a forum forsuch statements on controversial matters is not acting in a fashion at odds with the premises ofdemocratic government and with the orderly manner in which economic, social, or politicalchange 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 Yorkcourts in safeguarding freedom of speech against undue influence, the anti-SLAPP statuteprovides a particular mechanism towards that end. Significantly, New York courts areempowered by the law to dispose at the very outset with meritless claims asserted by those whowould force individual citizens to expend vast resources in defending them.

New York courts undertake a two-step analysis in determining whether the anti-SLAPPstatute applies. First, the Court must determine whether the plaintiff is a "public applicant,"

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which is defined by Civil Rights Law $ 76-a(1)(b) to include any person who has "applied for orobtained" a "permit, zoning change, lease, license, certihcate or other entitlement for use orpermission to act" from "any government body." Plaintiff, a prominent (albeit controversial) andpolitically connected real estate developer who is seeking approval from the Town of HalfmoonPlanning Board to construct alarge residential complex consisting of at least nineteen (19) andup 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 soughtpermission to develop its store and erect the sign from a govement body"). Indeed, the officialMeeting Minutes for the Town of Halfmoon Planning Board on July 9,2012, specifically refer toPlaintiff as "the applicant" (see Ex. C to Compl., pp. 5, 7), and the Complaint itselfacknowledges that the Town Planning Board is the govemmental body "charged with regulation,approval, and oversight of Plaintifls construction and development projects." (Compl., I74; seealso id., fl 32) Next, the Court must determine whether the lawsuit is an "action involving publicpetition and participation." This is defined by Civil Rights Law $ 76-a(I)(a) to include anyaction by a public applicant which is "materially related to any efforts of the defendant to reporton, comment on, . . . challenge or oppose such application or permission." In this case, then, theCourt must determine whether Plaintiff s lawsuit is "materially related" to Mr. Rischert'scommentary "challengling]" and "opposfing]" the proposed "Anna's Place" developmentproject. There can be no doubt that it is, given that the Complaint's defamation claims ariseexclusively from those statements.

The trial court's decision in ZS Haulers, Inc. v. Kaplan is instructive in its application ofthe anti-SLAPP statute. Plaintiff in that case applied to a local town board for a permit to

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continue its sand mining operations. Defendant, a not-for-proht civic association, publishedstatements opposing plaintiffls application in local newspapers which stated that"'T.S. Haulershas not been forced to slow down or stop its illegal and damaging activities'" and "'is wellconnected politically in Suffolk County [because it] sponsors the race car team of RiverheadCouncilman Ed Densieski.' " 2001 N.Y. Misc. LEXIS 405, at *3. The Z.S. Haulers court hadno difficulty concluding that the anti-SLAPP Law applied:

It is clear that plaintiff is a public applicant or permittee since itwas seeking a special permit from the Town Board of Riverhead.It is equally as clear that the communication related to theopposition to the application by two not-for-profit civicorganizations whose aea of concem encompasses plaintifflsapplication.Id. at *6 (citation and footnote omitted), aff'd,295 A.D.2d at 596. For the reasons elaborated bythe Appellate Division, the statements were found not actionable in defamation as a matter oflaw:

Here, in the context in which this speculation appeared--a highlypartisan communication from an identified group, opposing theplaintiffls application for a special permit in an acrimonious andlong-running public dispute over the plaintiff s use of the propertyfor mining--a reasonable listener or reader would find, at best, thatsuch 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 summaryjudgment dismissing the Complaint pursuant to CPLR 32I2(h), along with an award todefendant of its costs and attorneys' fees on its anti-SLAPP law counterclaim because "plaintifffailed 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 lawsuitstands exposed by the undisputed proof in the record as a retaliatory vendetta against

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Mr. Rischert as an outspoken opponent of his record and practices as a local landlord anddeveloper. Simply put, Plaintiff is seeking to punish Mr. Rischert through the legal process asretribution 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 whichchallenged, opposed, and criticized Plaintifls application to the Town of Halfmoon PlanningBoard to build a major subdivision that would, in Defendant's view, "carve up the landscapewith subpar multi dwelling density residences." (Rischert Aff., !H"11-15" and Exs. l8-19) Ittherefore cannot seriously be disputed that the instant lawsuit is "materially related" toDefendant'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 residentialdevelopment project to vituperative and harassing extremes, culminating in this frivolouslitigation, which ignores the First Amendment imperative that citizens are allowed freely to expressthemselves to government officials on matters of current public importance. He is seeking tocontrol the way that Defendant - and any other would-be critics - speak out on the "Anna'sPlace" 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 tospeak, or when one side is able to shift the efforts of its opponentsaway from public issues toward private self-defense. The entirecharacter of public discourse is polluted when intimidationbecomes 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 civillitigation, primarily defamation suits, to intimidate or silence those who speak out at public meetings againstproposed 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 butare fled nonetheless to burden opponents with legal defense costs and the threat of liability and to discouragethose who might wish to speak out in the future. In response, New York State enacted a law specifically aimedat 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.

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Braun, "lncreasing SLAPP Protection: Unburdening the Right of Petition in Calirnia," 32U.C. Dnvts L. Rpv. 965,970 (1999). The same could certainly be said of Plaintiffls defamationclaims in the instant case. This is precisely the sort of harassing and punishing lawsuit that theanti-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, bytightening the legal substantive requirements imposed upon plaintiffs in order to prevail in such asuit and by lowering the procedural hurdles that the defendant in such a suit must clear in orderto 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 sametime the anti-SLAPP statute was enacted.

CPLR 32I2(h) makes clear that the ordinary standards goveming summary judgment donot apply to a SLAPP action. Instead, when a complaint is found to be subject to theanti-SLAPP statute Plaintifls defamation claims are here - a defense summary judgmentmotion "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 anextension, 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 factcould determine that there exists a high degree of probability" that he can prove the elements ofhis claims. T.S. Haulers,2001 N.Y. Misc. LEXIS 405, at *7. "This high standard of review is a

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legislative determination to protect public discussion which would be chilled by long litigationand its costs." Id. attT-8. Clearly, this is not a standard Plaintiff can meet.13

(1) The Constitutional Opinion Privilege is Dispositive of PlaintiffsDefamation 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 subsequentoral comments to the Halfmoon Town Board are immune from liability based on the absoluteconstitutional protection afforded to expressions of "pure" opinion in New York State.Se POINTS II A.-F., supra. The Complaint's libel and slander claims therefore cannot besustained as a matter of law.C. Defendant Is Entitled to Attorneys' Fees, Costs and Damages Under theAnti-SLAPP Statute.

Civil Rights Law $ 70-a(1Xa) provides for costs and attomeys' fees where it isdemonstrated that an action involving public petition and participation was conmenced andcontinued without a substantial basis in fact and law, and could not be supported by a substantialargument 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 costsand attomey's fees"). Civil Rights Law $ 70-a(lXb) provides for compensatory damages if thedefendant demonstrates that such action was commenced or continued for the purpose ofharassment, intimidation, punishment or malicious inhibition of free speech, petition or associationrights, 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 directingassessment of compensatory and punitive damages as sanction for filing of SLAPP action).

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 determinesthat this is not a SLAPP suit, the Complaint still should be dismissed as a matter of law pursuant to CPLR 3212.l3

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There is ample evidence in the Complaint itself, augmented by the record on summaryjudgment, that such is the case here. Plaintiff cannot complain he was not on notice. After theComplaint was filed, and in advance of f,rling this anti-SLAPP law motion, Defendant's counselpainstakingly advised Plaintiff that his claims were frivolous and that Defendant would seekfees, 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 andattorneys' fees pursuant to anti-SLAPP law where, before hling motion to dismiss, defendant'scounsel wrote plaintiffs counsel "detailing the factual and legal reasons that its Complaintlacked any proper basis."). Plaintiff nevertheless obstinately chose to do so. He should thereforebe assessed Mr. Rischert's costs and fees, as well as damages.

POINT IVIN THE ALTERNATIVE, AN AWARD OF COSTS AND REASONABLEATTORNEYS' FEES IS MANDATORY, NOT PERMISSIVE, UNDER CPLR 8303-AUPON 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 andharassment, 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 "inan 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 thecourt. . , ." 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.2d273,219 (N.Y. Co. Sup, Ct., 1966) ("The definition of 'personal injury'is an exceedingly broad one (Generalconstruction Law, $ 37-a) and covers every variety of injury to a person's body, feelings or reputation.")(emphasis supplied).

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

The action, [or] claim ... \/as commenced or continued in bad faithwithout any resonble basis in law or fct and could not besupported by a good faith argument for an extension, modificationor reversal of existing law.

CPLR8303-a(c)(ii) (emphasis supplied); see 22 NYCRR $ 130-1.1(cX1) (conduct may bedeemed frivolous where "it is completely without merit in law and cannot be supported by areasonable argument for an extension, modification or reversal of existing law").

CPLR 8303-a imposes upon counsel a duty to investigate a claim before commencementand 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 inadvance of the instant motion, Defendant's counsel wrote Plaintifls attorney, candidly andcomprehensively setting forth the reasons this action lacked merit. (Grygiel Aff., 'll'!J"6" adEx. 4) Plaintiff s attorney did not deign to reply to this letter until much later than the requestedresponse date, and never addressed the merits of Defendant's legal arguments. (1d.,n"7" artdEx. 5) Rather, Plaintiff insisted on proceeding with this action, notwithstanding that he has noclaim as a matter of law.

There is no evidence that Plaintiff - apparently blinded by his zeal to strike back atMr. Rischert for publicly opposing the "Anna's Place" building application - or his counselconducted any investigation prior to commencing this litigation.ls To the contrary, the evidenceis 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, includingfederal 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, Plaintiffevidently undertook no investigation, nor did he evidently trouble himself with even a cursory examination ofthe controlling case law establishing the paramount protection afforded speech on public issues under the FirstAmendment and the absolute immunity bestowed upon statements of opinion by Article I, Section 8 of the NewYork Constitution, before pulling the trigger on this lawsuit.

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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 beingspecifically 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 adetermination as to the amount of sanctions. "From the outset of this action it was or shouldhave been apparent to plaintiff and his counsel that these issue[s] could [not] be resolved in hisfavor." Id. Thus, like Mitchell,this action is frivolous. Sanctions should be imposed. Id. at220. ("we hold that sanctions are mandated after a finding of frivolousness").

Given the dispositive application of constitutional free speech principles here,l thislawsuit is tantamount to harassment with the apparent intent to punish Defendant's exercise ofhis core First Amendment rights in making statements critical of Plaintiff s proposed real estatedevelopment project. Plaintiff should not be permitted to burden either the Court or Defendantby prosecuting his frivolous claims. Grasso v. Mathew, 164 A.D.2d at 480 ("the sanctionprovisions of CPLR 8303-a , . . are intended to prevent waste of judicial resources and reduceexpense in opposing frivolous claims").

Plaintiff s utter disregard for the First Amendment and controlling precedent from thisState's highest court and its appellate courts must not be tolerated. Because - other than hist6 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 "thepatently false factual allegations in the complaint and the absence of evidence of malice on the part of thedefendants amply support a finding that plaintiff was aware that the actions were without reasonable basis inlaw or fact"); Grasso v. Mathew, 164 A.D.2d 476,480 (3d Dep't l99l) (awarding CPLR 8303-a sanctions uponthe finding that "whether true or not, the challenged statement so clearly became absolutely privileged, as amatter of law, that under no circumstances could a libel claim be supported"); Posner v. New York LawPublishing Co.,228 A,D.2d 318, 318 (1st Dep't 1996) (holding that hyperbolic commentary "on a subject ofpublic controversy" was "constitutionally protected opinion" and finding that "costs were properly assessed bythe motion couft"). See also Carniol v. Carniol, 288 A.D.2d 421, 421-22 (2d Dep't 2001) (remitting forsanctions where "plaintiffs complaint failed to set fofth any cognizable claim for defamation" and thecomplained of statements were absolutely privileged).

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apparent disagreement with (or misunderstanding of) established constitutional principles -Plaintiff has failed to offer either (a) any compelling good faith arguments that his defamationcauses of action have a legitimate basis under existing law, or (b) any persuasive reason toreexamine 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 afinding of frivolousness, sanction is mandatory, especially in the wake of frivolous defamationlitigation.") (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 astrict application of the provisions of CPLR 8303-a"); Entertainment Partners Group, Inc. v.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; casewas dismissed shortly before enactment of anti-SLAPP statute); Mitchell v. Herald Co., 737A.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).

CONCLUSIONThe 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 publicconcern" are dispositive here. Immuno 11,77 N.Y.2d at 242. Like the letter to the editor at issuein Immuno II, supra, the op-ed expos at issue in Brian v. Richardson, suprq and the similarpublic comments made during the community board hearing at issue in 600 lest l55th StreetCorp. v. Von Gutfeld, supra, Defendant's "Gold Rush!" letter distributed to the Town of

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

closely related in spirit to the "marketplace of ideas" and oversightand informational values that compelled recognition of theprivileges of fair comment, fair report and the immunity accordedexpression of opinon. These values are best effectuted byccording defendant some ltitude to [speak] on mtter oflegitimte public concern-the [speaker'sJ affilton, bs ndpremises fully dsclosed, rebuttal openly nvited-free ofdefmation litgaton. A publication that provides a forum forsuch statements on controversial matters is not acting in a fashion"at odds with the premises of democratic government and with theorderly manner in which economic, social, or political change is tobe effected," but to the contrary is fostering those very values.

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 dismissingthe Complaint in its entirety as a matter of law, the Court award appropriate sanctions, includingcosts 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 thealternative, without reasonable basis in fact and law as required by CPLR 8303-a, together withsuch other and further relief as the Court may deem just and proper

Dated: March 72,2073Albany, New York GREENBERG TRAURIG, LLPB

Jttorneys54 State St., 6th FloorAlbany, New York 12207Phone: (518) [email protected]

Rischert

Bruce vs. Bruce

Documents

Transcript of Bruce vs. Bruce