Villanova Estates, Inc. v. Fieldston Property Owners Association, Inc.

• Citation: 2005 NY Slip Op 08031,23 A.D.3d 160,803 N.Y.S.2d 521
• Decision Date: 01 November 2005
• Docket Number: 6952.
• Parties: VILLANOVA ESTATES, INC., Formerly Known as CHAPEL FARM ESTATES, INC., Appellant, v. THE FIELDSTON PROPERTY OWNERS ASSOCIATION, INC., et al., Respondents.
• Court: New York Supreme Court Appellate Division

23 A.D.3d 160

803 N.Y.S.2d 521

2005 NY Slip Op 08031

VILLANOVA ESTATES, INC., Formerly Known as CHAPEL FARM ESTATES, INC., Appellant, v. THE FIELDSTON PROPERTY OWNERS ASSOCIATION, INC., et al., Respondents.

6952.

Appellate Division of the Supreme Court of the State of New York, First Department.

November 1, 2005.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered September 15, 2004, which granted defendants' preanswer motion to dismiss 11 of the 17 causes of action of the first amended complaint, unanimously modified, on the law, to the extent of reinstating the second, fifth, twelfth, thirteenth, fourteenth and sixteenth causes of action, and otherwise affirmed, without costs.

In this action concerning the right of access to property and sewer rights between a land developer and a property owner's association and its members, the motion court properly dismissed plaintiff's fifteenth cause of action for injurious falsehood. The fifteenth cause of action asserts that defendants made numerous intentionally, wantonly, and maliciously false statements concerning plaintiff's right to access its property during plaintiff's Uniform Land Use Review Procedure (ULURP) application process. Since the alleged false statements were made by defendants to public officials during the ULURP process, pursuant to the Noerr-Pennington doctrine, which protects the First Amendment right of petitioning the government, defendants are immune from liability for making those statements, regardless of the fact that the false statements may have been known to be false when made (see Alfred Weissman Real Estate v Big V Supermarkets, 268 AD2d 101, 106-107 [2000]). The "sham" exception to the application of the Noerr-Pennington doctrine does not apply since the amended complaint fails to allege any facts from which it can be inferred that the defendants had no genuine interest in seeking governmental action (see id. at 109-110). Defendants were homeowners of the abutting property seeking to defeat a governmental action which they believed was detrimental to their community. Moreover, since plaintiff attributes the City Council's disapproval of its application to defendants' activities, these activities can hardly be considered a sham (see Concourse Nursing Home v Engelstein, 278 AD2d 35 [2000]).

The motion court, however, erred by dismissing the second and fifth causes of action as barred by the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute...