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THE DEFAMATION SUIT BY PLAINTIFF MARINA OWNER AGAINST AN ENVRONMENTAL ADVOCACY ORGANIZATION AND A PUBLISHER WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP); DEFENDANT WAS ABLE TO SHOW ONE PUBLISHED STATEMENT WAS FALSE; THEREFORE THE ACTION CAN PROCEED WITH RESPECT TO THAT ONE STATEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the action by plaintiff marina-owner against defendant environmental advocacy organization and defendant publisher was a strategic lawsuit against public participation (SLAPP). Therefore the burden shifted to plaintiff to demonstrate there was a substantial basis in law to allege that published statements were false. The Second Department found that all but one of the statements were truthful on nonactionable statements of opinion. The claim that the marina would encompass four times the area of the present marina was the one statement for which there was a substantial basis in law for claiming it to be defamatory:

In 1992, New York enacted legislation to provide protection from a strategic lawsuit against public participation (hereinafter SLAPP suit) that is, a lawsuit characterized as having little merit, brought in retaliation for making public comment on matters of civic significance (see Civil Rights Law §§ 70-a, 76-a …). The anti-SLAPP law … accomplishes its protective goal by providing expedited processes for a defendant to obtain dismissal of a SLAPP suit (see CPLR 3211 [g]; 3212 [h]) and by allowing awards of counsel fees and damages to a defendant targeted by a such a lawsuit (see Civil Rights Law § 70-a). When a defendant moves to dismiss a complaint under CPLR 3211 (g), it is the defendant’s initial burden to show that the lawsuit is indeed a SLAPP suit … . If that burden is met, the motion to dismiss must be granted unless the plaintiff can demonstrate that its action has “a substantial basis in law, which requires such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . Under this unique framework, “which is, in effect, an accelerated summary judgment procedure” … , a court is required to consider the pleadings as well as affidavits submitted by the parties setting forth the relevant facts (see CPLR 3211 [g] [2]). * * *

As for the question of whether the instant action constitutes a SLAPP suit, we find that it does. * * *

… [T]he burden shifted to plaintiff to demonstrate that its defamation claim had a substantial basis in law. In an effort to satisfy this burden, plaintiff asserted that five of the claims contained within the published statement were false. Supreme Court disagreed, siding with defendants’ position that each of the contested claims was either truthful or a nonactionable expression of opinion. We concur with the court relative to all but one of the claims. A portion of the statement indicated that plaintiff “wants to replace 8,600 square feet of dock . . . with 34,000 feet of commercial marina for 93 motorized boat slips. That’s a four-fold increase.” … [T]he record reveals that, in arriving at those figures, [defendant] used inconsistent measurements. … [W]e are satisfied that plaintiff met its corresponding burden of establishing that part of its defamation claim had a substantial basis in law, and as a result defendants’ motions to dismiss should have been denied to the extent of allowing the defamation claim to proceed as to that one statement. USL Mar., LLC v Adirondack Wild: Friends of the Forest Preserve, 2026 NY Slip Op 00953, Second Dept 2-18-26

Practice Point: Consult this opinion for insight into how the expedited summary-judgment procedure works for a lawsuit that meets the criteria for a strategic lawsuit against public participation (SLAPP). Here plaintiff met its burden to proceed on one allegedly defamatory statement.

 

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