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An environmental group and its director have lost their bid to recover attorney fees and compensatory and punitive damages from an attorney who filed an allegedly frivolous defamation suit against them, a New York appellate court has ruled. The Appellate Division, 1st Department, held that the lawyer’s claim did not amount to a “Strategic Lawsuit Against Public Participation,” more commonly referred to as a SLAPP suit, since he was not a “public applicant” or “permittee” under the civil rights statute. While the attorney “aggressively” lobbied to use property on the former Grumman Airfield to store his private jets, “merely advocating one’s agenda at public meetings, or initiating legal action, does not bring an individual within the ambit of an applicant or permittee as defined in Civil Rights Law Section 76-a(1)(b),” Justice Eugene L. Nardelli wrote for a unanimous panel in Hariri v. Amper. The underlying defamation action arose in March 2004 after attorney Ronald D. Hariri began negotiations to buy land at Enterprise Park at Calverton in Riverhead, Long Island. Hariri planned to use the property to store business jets for his own and “possible time share use.” At the time, the Town of Riverhead planned to rezone the park land, which led Hariri to embark on a lobbying campaign to encourage town officials to pass a zoning code that would enable him to pursue his aviation enterprise. The Long Island Pine Barrens Society, a not-for-profit environmental, educational and advocacy group, and its executive director, Richard Amper, opposed Hariri’s plan. Although zoning laws passed by the town board in December 2004 precluded Hariri from proceeding with his efforts, he subsequently filed a $10 million defamation suit against the environmental group and Amper. According to the decision, Hariri alleged the group and its director falsely accused him of “improper relationships with public officials, shameless, un-American and improper lobbying, muzzling free speech and causing a third party to make criminal death threats against Amper.” The society and Amper, in turn, countersued Hariri, contending he was a “public applicant or permittee” and that his action constituted an illegal suit against public participation under the Civil Rights Law. In a June 2006 order, Manhattan Supreme Court Justice Emily Jane Goodman denied Amper and the environmental group summary judgment on their counterclaim. The appellate court unanimously upheld Goodman’s decision. Citing the Court of Appeals decision in 600 W. 115th St. Corp. v. Von Gutfield, the appeals panel wrote that strategic suits against public participation have “‘little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability’” and to prevent these individuals from voicing their opinions in the future. LAW ‘STRICTLY CONSTRUED’ In writing for the panel, Nardelli noted that Civil Rights Law Section 70-a and Section 76-a were passed by the Legislature in 1993 to allow victims of SLAPP suits to recoup attorney fees and compensatory damages. In enacting the statute, lawmakers observed that “the threat of personal damages and litigation costs can be and has been used as a means of harassing, intimidating or punishing individuals, unincorporated associations, not-for-profit corporations and others who are involved themselves in public affairs.” Under Civil Rights Law Section 76-a(1)(a), a suit against public participation must be initiated by a “public applicant or permittee,” who is defined as a person “who has applied for or obtained a permit, zoning change … or other entitlement for use or permission to act from any government body.” The legislation “creates a new right of action for victims of SLAPP suits,” the court noted, by enabling them to recover attorney’s fees and compensatory and punitive damages. However, finding that the law must be “strictly construed,” the panel rejected the environmental group and Amper’s claim that Hariri’s lobbying efforts rendered him a “public applicant or permittee.” Hariri “cannot be deemed a public applicant or permittee based upon the fact that he aggressively advocated a particular agenda directly to town board members and at public meetings, and took steps to commence litigation against the Town,” the court wrote. While Hariri filed a notice of claim with the town, arguing that the zoning restrictions amounted to an illegal restraint of trade, Nardelli found that no proof existed that the attorney ever formally applied to exempt himself from the zoning provisions. “In view of the narrow construction which must be afforded Civil Rights Law Section 70-a and Section 76-a,” the court concluded that “merely advocating one’s agenda at public meetings, or initiating legal action, does not bring an individual within the ambit of an applicant or permittee as defined” in the statute. Presiding Justice Jonathan Lippman and Justices Richard T. Andrias and Luis A. Gonzalez joined the opinion. The panel heard arguments in the case on Oct. 24, 2007. Richard Johannesen and AnnMarie R. Johannesen of Johannesen & Johannesen served as counsel for the Long Island Pine Barrens Society and Amper. Johannesen said that the panel “improperly interpreted the [civil rights] statute,” which would result in a “chilling” effect on activists speaking out against developers in the state. He said that his clients plan to appeal, and that if the courts did not redress the issue, legislative action might be required. Hariri, who represented himself, praised Goodman’s holding and characterized the appellate court’s decision as “well-reasoned” and having “appropriately narrowly construed” the civil rights statute. His defamation suit is still pending. This article originally appeared in theNew York Law Journal , a publication of ALM.

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