Sections 70-a and 76-a, Civil Rights Code
(October 22, 1995)
McKinney's Consolidated Laws of New York Annotated Civil Rights Law
Chapter 6 of the Consolidated Laws
Article 7 -- Miscellaneous Rights and Immunities
s 70-a. Actions involving public petition and participation; recovery of damage
1. A defendant in an action involving public petition and participation, as defined in paragraph
(a) of subdivision one of section seventy-six-a of this article, may maintain an action, claim,
cross claim or counterclaim to recover damages, including costs and attorney's fees, from any
person who commenced or continued such action; provided that:
(a) costs and attorney's fees may be recovered upon a demonstration that the action involving
public petition and participation was commenced or continued without a substantial basis in fact
and law and could not be supported by a substantial argument for the extension, modification or
reversal of existing law;
(b) other compensatory damages may only be recovered upon an additional demonstration that
the action involving public petition and participation was commenced or continued for the
purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free
exercise of speech, petition or association rights; and
(c) punitive damages may only be recovered upon an additional demonstration that the action
involving public petition and participation was commenced or continued for the sole purpose of
harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech,
petition or association rights.
2.The right to bring an action under this section can be waived only if it is waived specifically.
3. Nothing in this section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, or by statute, law or rule.
Notes:
(Added L.1992, c. 767, s 2.) L.1992, c. 767, s 6, provided: " This act [enacting this section and s
76-a and amending CPLR 3211 and 3212] shall take effect on the first day of January next
succeeding the date on which it shall have become a law [eff. Jan. 1, 1993], provided that this act
shall not affect any action, claim, cross claim or counterclaim commenced prior to the effective
date of this act."
"Legislation Provides Prompt Review of SLAPP Suits", Terry Rice, 210 N.Y.L.J. 1 (1993).
s 76-a. Actions involving public petition and participation; when actual malice to be proven
1. For purposes of this section:
(a) An "action involving public petition and participation" is an action, claim, cross claim or
counterclaim for damages that is brought by a public applicant or permittee, and is materially
related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose
such application or permission.
(b) "Public applicant or permittee" shall mean any person who has applied for or obtained a
permit, zoning change, lease, license, certificate or other entitlement for use or permission to act
from any government body, or any person with an interest, connection or affiliation with such
person that is materially related to such application or permission.
(c) "Communication" shall mean any statement, claim, allegation in a proceeding, decision,
protest, writing, argument, contention or other expression.
(d) "Government body" shall mean any municipality, the state, any other political subdivision or
agency of such, the federal government, any public benefit corporation, or any public authority,
board, or commission.
2. In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.
3. Nothing in this section shall be construed to limit any constitutional, statutory or common law protections of defendants to actions involving public petition and participation.
Notes:
(Added L.1992, c. 767, s 3.) Section effective Jan. 1, 1993, pursuant to L.1992, c. 767, s 6.
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