A Nassau County judge has issued a $10,000 fine to an attorney who represented property owners over a controversial subdivision application, finding that their lawsuit was “strategic litigation against public participation” under New York law.
Supreme Court Justice Daniel Palmieri (See Profile) ruled on March 13 in Bennett v. Towers, 600049/14, that the suit was frivolous and filed only to stop people from opposing the subdivision. He ordered the plaintiffs’ attorney, Edward J. Boyle, to pay the maximum sanction allowed by the Uniform Rules of the state’s court system. Boyle could not be reached for comment.
John Dunne of Lynn, Gartner, Dunne, & Covello, who represents the defendants, said it was “extremely rare, to the point of just about never” for a judge to impose the maximum $10,000 sanction in a finding of a SLAPP suit.
The suit was filed by Mary Bennett and Lawrence Daily, who own an unimproved parcel of land in the Village of Munsey Park as trustees of a revocable trust. Last June, they entered into a contract to sell the property for $1.2 million, contingent on getting the village’s permission to subdivide the property into two parcels so that two houses could be built on it. The plaintiffs applied for permission to subdivide the property.
The defendants in the case, other residents of the village, opposed the application. One of them, Brian Griffith, created an online petition and collected over 300 signatures. The petition said that allowing the subdivision would “forever change the look and feel” of the area. Last November, Griffith and the other defendants appeared at a public hearing at Munsey Park’s village hall to oppose the application.
To date, the application is still pending and the property remains in contract, though the sale has not closed.
In January, Bennett, Daily and their trust sued Griffith and three other opponents of the subdivision, asserting claims for tortious interference with contract and defamation.
The defendants moved for summary judgment, saying the litigation was merely a SLAPP suit.
Under state statute, if a lawsuit is determined to be a SLAPP suit, the burden shifts to the plaintiffs to show why the defendants should not be granted summary judgment. To carry that burden, the plaintiffs must show that their claims are supported by facts and law, and that the communications that gave rise to the suit were knowingly false or made with reckless disregard to the truth.
New York’s Civil Rights Law §76-a(1)(a) and (b) states that any lawsuit brought by an applicant for a government permit that is “materially related” to the defendants’ opposition to that application is a SLAPP suit. Bennett and Daily’s suit clearly fit that definition, Palmieri said.
The plaintiffs failed to meet their burden to sustain a SLAPP suit, the judge found. The tortious interference claim failed because the buyer had not actually withdrawn from the contract, and the defamation claim failed “because defamatory words are not set forth” in the suit.
“In addition, to the extent the alleged defamatory statements stem from the defendants’ petition or the hearing, the Court finds that they are not reasonably susceptible of a defamatory meaning,” Palmieri wrote. “It is also worth noting that because the hearing was held as part of the Village’s role as decision maker on the application, which is quasi-judicial in nature, statements made there enjoy an absolute privilege.”
The judge added that there was no evidence that any of the defendants’ statements opposing the subdivision were false, and in fact that many those statements were “inherently subjective.”
Much of the lawsuit hinged on the defendants’ “allegedly selfish and venal motives,” which are “essentially irrelevant” to the suit, the judge said. Such allegations, he said, could be made in an Article 78 action challenging the denial of the subdivision application, if it is actually denied.
Turning to the question of sanctions against the plaintiffs’ attorney, the judge noted that Boyle had twice made statements showing that he knew the suit was intended to stifle opposition to the subdivision.
In an affirmation submitted in court, Boyle wrote, “Perhaps if Defendants withdrew their efforts, the locally elected officials will consider and approve the Sub-Division Application.”
In a letter to a local newspaper, Boyle wrote that the lawsuit was filed “to dissuade” the defendants “from further conduct as well as to hold them accountable for what they were attempting to accomplish.”
This “clear statement that the lawsuit was intended to silence defendants,” Palmieri said, “calls for a strong response from this Court.”
Accordingly, he imposed the maximum sanction of $10,000.
“We’re very happy with the decision,” said Dunne, the defendants’ lawyer. “The judge is 100 percent correct. It was a very straightforward case. Every element of the statute, we met.”
The suit “was filed for no other reason but to punish my clients and try and force them to withdraw any opposition to the application, which is exactly what a SLAPP suit is,” he added.