Int'l Shoppes, Inc. v. At the Airport, LLC
| Decision Date | 02 September 2015 |
| Docket Number | 2012-10681, 2013-03899, Index No. 4425/11. |
| Citation | 131 A.D.3d 926,16 N.Y.S.3d 72,2015 N.Y. Slip Op. 06710 |
| Parties | INTERNATIONAL SHOPPES, INC., et al., respondents-appellants, v. AT THE AIRPORT, LLC, et al., defendants, Concetta Petrucci, appellant-respondent. |
| Court | New York Supreme Court — Appellate Division |
Lynn, Gartner, Dunne & Covello, LLP, Mineola, N.Y. (Kenneth L. Gartner, Robert P. Lynn, Jr., Stephen W. Livingston, and Joseph Covello of counsel), for appellant-respondent.
Sepe & O'Mahony, PLLC, Rockville Centre, N.Y. (Michael Sepe, William J. O'Mahony, Leonard H. Berkeley, pro hac vice, and Emily Jan Weiner, pro hac vice, of counsel and Raymond M. Brown, former of counsel on the brief), for respondents-appellants.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for breach of a settlement agreement, the defendantConcetta Petrucci appeals, as limited by her brief, (1) from so much of an order of the Supreme Court, Nassau County(Brandveen, J.), entered August 8, 2012, as directed a hearing on her motion for summary judgment, in effect, determining that this action is one involving public petition and participation within the meaning of Civil Rights Law § 76–a, dismissing the complaint insofar as asserted against her, and on her counterclaim pursuant to Civil Rights Law § 70–a, and (2) from so much of an order of the same court entered March 11, 2013, as, upon reargument, vacated so much of the order entered August 8, 2012, as directed a hearing on her motion for summary judgment, and thereupon, in effect, denied her motion, and the plaintiffs cross-appeal, as limited by their brief, (1) from so much of the order entered August 8, 2012, as directed a hearing on the defendantConcetta Petrucci's motion for summary judgment, and (2) from so much of the order entered March 11, 2013, as, in effect, denied that branch of their motion which was, in effect, for summary judgment determining that this action is not one involving public petition and participation within the meaning of Civil Rights Law § 76–a.
ORDERED that the appeal and cross appeal from the order entered August 8, 2012, are dismissed as academic, without costs or disbursements, in light of the subsequent vacatur of the portions of that order appealed and cross-appealed from in the order entered March 11, 2013, and our determination of the appeal and cross appeal therefrom; and it is further,
ORDERED that the order entered March 11, 2013, is modified, on the law, by deleting the provision thereof, upon reargument, in effect, denying that branch of the defendantConcetta Petrucci's motion which was for summary judgment, in effect, determining that this action is one involving public petition and participation within the meaning of Civil Rights Law § 76–a, and substituting therefor a provision, upon reargument, granting that branch of the motion; as so modified, the order entered March 11, 2013, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Contrary to the plaintiffs' contention, upon reargument, the Supreme Court should have granted that branch of the motion of the defendantConcetta Petrucci(hereinafter Petrucci) which was for summary judgment, in effect, determining that this action is one involving public petition and participation within the meaning of Civil Rights Law § 76–a, commonly known as a strategic lawsuit against public participation, or SLAPP suit.
Civil Rights Law § 76–a(1) provides, in relevant part:
Here, the plaintiffs are “public permittees” within the meaning of the statute, since that term encompasses those who have obtained a lease from a government body, and the plaintiffs have obtained concessionary leases from the Port Authority of New York and New Jersey (hereinafter the Port Authority).Moreover, those causes of action specifically asserted against Petrucci in the complaint are “materially related” to her efforts to report on those leases, since they are premised upon her statements to the Port Authority's Office of the Inspector General(hereinafter the OIG) regarding whether the plaintiffs, inter alia, intentionally underreported their revenues and thus paid less rent than was owed under the leases.Inasmuch as the complaint alleges that Petrucci affirmatively instigated the subject investigations by the OIG in a calculated attempt to undermine the plaintiffs' leases with the Port Authority, and that she made her statements directly to the governing body responsible for the leases (cf.Silvercorp Metals Inc. v. Anthion Mgt. LLC,36 Misc.3d 660, 948 N.Y.S.2d 895[Sup.Ct., N.Y. County] ), Petrucci demonstrated her prima facie entitlement to judgment as a matter of law determining that this action is a SLAPP suit, and the plaintiffs failed to raise a triable issue of fact in opposition.Accordingly, this action is properly characterized as a SLAPP suit (see generallyNational Fuel Gas Distrib. Corp. v. Push Buffalo [People United for Sustainable Hous.],104 A.D.3d 1307, 962 N.Y.S.2d 559;Goldstein v. Held,93 A.D.3d 689, 939 N.Y.S.2d 873;Novosiadlyi v. James,70 A.D.3d 793, 894 N.Y.S.2d 521;Singh v. Sukhram,56 A.D.3d 187, 866 N.Y.S.2d 267;Matter of Related Props., Inc. v. Town Bd. of Town/Vil. of Harrison,22 A.D.3d 587, 802 N.Y.S.2d 221 ).
However, Petrucci was not entitled to summary judgment dismissing those causes of action specifically asserted against her in the complaint, or on her counterclaim pursuant to Civil Rights Law § 70–a.While we share the dissent's concern for safeguarding the rights of citizens to comment on matters of public concern, and we acknowledge that “ Civil Rights Law § 76–a was enacted to provide special protection for defendants in actions arising from the exercise of their rights of public petition and participation by deterring SLAPP actions”(Novosiadlyi v. James,70 A.D.3d at 794, 894 N.Y.S.2d 521;seeAllan & Allan Arts v. Rosenblum,201 A.D.2d 136, 143–144, 615 N.Y.S.2d 410 ), we conclude that the plaintiffs sustained their statutory burdens in opposition to the motion by demonstrating that the action “has a substantial basis in fact and law”(CPLR 3212[h];seeGiorgio v. Pilla,100 A.D.3d 826, 954 N.Y.S.2d 584;Matter of Related Props., Inc. v. Town Bd. of Town/Vil. of Harrison,22 A.D.3d 587, 802 N.Y.S.2d 221 ).Indeed, the plaintiffs came forward with allegations and supporting evidence indicating that Petrucci, despite knowing or having reason to know that revenues were not intentionally underreported and that rent was properly paid, falsely and maliciously advised Port Authority investigators that the plaintiffs were intentionally underreporting revenues from the leasehold premises and underpaying rent, and that she did so out of personal enmity and to disrupt the existing and prospective contractual and business relations between the plaintiffs and the Port Authority as well as to undermine the terms of a settlement agreement entered into between the plaintiffs and Petrucci's father in 2007(see generallyGuard–Life Corp. v. Parker Hardware Mfg. Corp.,50 N.Y.2d 183, 194, 428 N.Y.S.2d 628, 406 N.E.2d 445;Kevin Spence & Sons v. Boar's Head Provisions Co.,5 A.D.3d 352, 354, 774 N.Y.S.2d 56 ).Additionally, the plaintiffs submitted evidence demonstrating that the ensuing investigation resulted in a finding that they committed no wrongdoing.Moreover, while the truth or falsity of Petrucci's statements was material to the causes of action asserted against her, the plaintiffs made an adequate showing that Petrucci's statements to investigators were false and were known by her to be false or were made with reckless disregard of whether they were false (seeCivil Rights Law § 76–a[2];Singh v. Sukhram,56 A.D.3d 187, 866 N.Y.S.2d 267;cf.Goldstein v. Held,93 A.D.3d 689, 939 N.Y.S.2d 873;Novosiadlyi v. James,70 A.D.3d 793, 894 N.Y.S.2d 521 ).Accordingly, at this pre-discovery phase of the litigation, the plaintiffs' submissions were sufficient to withstand Petrucci's motion for summary judgment, and further proceedings are necessary to resolve the issues raised by the parties.
Petrucci's contention regarding the holding of an immediate hearing to determine factual issues is unpersuasive (seeCPLR 3212[h] ), and her contention regarding the statute of limitations, raised for the first time on appeal, is not properly before this Court(seeWhitehead v. City of New York,79 A.D.3d 858, 913 N.Y.S.2d 697 ).The plaintiffs' remaining contentions are without merit.
MILLER, J., concurs in part and dissents in part, and votes to reverse the order entered March 11, 2013, insofar as appealed from, and, upon reargument, grant that branch of the defendantConcetta Petrucci's motion which was for summary judgment dismissing the complaint insofar as asserted against her, and remit the matter to the Supreme Court, Nassau County, for a determination of the merits of that branch of her motion which was for summary judgment on her counterclaim pursuant to Civil Rights Law § 70–a, with the following memorandum.
While I agree that the defendantConcetta Petrucci(hereinafter Petrucci) demonstrated, prima facie, that this is an action involving public...
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