Supreme Court, New York County, February 13, 2024

Carter, Ledyard & Milburn LLP, New York City (Alan Lewis of counsel), for plaintiff.

Morgan, Lewis & Bockius LLP, New York City and Boston, Massachusetts (Kenneth Schacter, Jonathan Albano and Andrew Buttaro of counsel), for Damian Garde, defendant.

White & McSpedon, P.C., New York City (Bruce Steinowitz and Christopher White of counsel), for Delilah Burke, defendant.

Plaintiff moves in motion seq No. 007 for an order vacating the stay and protective orders granted in this defamation action as part of the court's December 6, 2022 decision and order published at 2022 NY Slip Op 34108(U) (Sup Ct, NY County 2022) (the December decision).^[FN1] Plaintiff also seeks, in motion seq No. 008, leave to conduct discovery to oppose those branches of defendants' motions to dismiss (mot seq Nos. 003 and 004) that had been held in abeyance pending the Court of Appeals' consideration of New York's Anti-SLAPP (strategic lawsuits against public participation) Law, and to deny those motions to dismiss. For the reasons set forth below, plaintiff's motion for discovery is denied, plaintiff's motion to vacate the protective orders and stay is granted to the extent of lifting the stay and granting defendants' motions to dismiss this action pursuant to the Anti-SLAPP Law, and the court directs further proceedings to determine the award of defendants' reasonable attorney's fees and costs.^[FN2][*2] {**83 Misc 3d at 381}

Background and Previous Proceedings

This action, which has already been the subject of multiple reported decisions, arises from defendant Garde's December 2017 article in STAT reporting the accounts of five women that plaintiff had

"for years perpetuated a toxic culture of sexual harassment . . . routinely subjecting young female assistants to pornography in the workplace, lewd jokes, and pervasive sexist comments . . . kept a set of breast implants on his desk, palpating them like stress balls during idle conversation . . . and wantonly demeaned and verbally abused female employees," while managing a prominent hedge fund firm. (Amended complaint, exhibit A at 1.)

Plaintiff and his colleagues conceded during defendant Garde's interview of them that "the firm had investigated claims against [plaintiff]" (but had "concluded none rose to the level of 'a sexually egregious behavior,' " without defining that standard), while plaintiff acknowledged having had breast implants in his office. (Amended complaint, exhibit A at 2; NYSCEF Doc No. 16, interview tr at 19.) In a final comment to defendant Garde prior to publication, one of plaintiff's colleagues stated that "[i]f this article proceeds I hope that you will be fair and focus on the person responsible, not the entire firm." (Amended complaint, exhibit A at 2.) On December 5, 2017, the article published under the headline "[b]iotech hedge fund titan Sam Isaly harassed, demeaned women for years, former employees say." (Amended complaint, exhibit A at 1.)

Plaintiff subsequently commenced a series of actions litigated in state and federal court—including this action—variously alleging defamation by defendant Garde and his employers for having written and published the article, and against defendant Burke, the sole female accuser of plaintiff willing to speak with Garde on the record. (See Isaly v Boston Globe Media Partners, LLC, 2023 WL 6439901, *1-2, 2023 US App LEXIS 26124, *2-4 [2d Cir, Oct. 3, 2023, No. 23-67-cv] [affirming dismissal of federal action and discussing case history in state and federal courts].)^[FN3] The court initially dismissed this action {**83 Misc 3d at 382}by decision and order dated July 11, 2022, and published at 2022 NY Slip Op 32203(U) (Sup Ct, NY County 2022), about which plaintiff sought leave to reargue, which the court granted in part by the court's December 6th decision to the extent of holding defendants' anti-SLAPP motions and a portion of defendant Burke's motion to dismiss in abeyance pending the Court of Appeals' action in Gottwald v Sebert (40 NY3d 240 [2023]). The First Department affirmed the December decision (as noted previously), and denied plaintiff leave to reargue or appeal by decision and order dated September 7, 2023, and published at 2023 NY Slip Op 72896(U) (1st Dept 2023). Plaintiff then sought leave to appeal from the Court of Appeals, which the Court of Appeals denied by decision and order dated January 16, 2024, and published at 40 NY3d 1088 (2024).

Defendants do not oppose vacating the stay but instead request that the court deny discovery and grant their applications for attorney's fees and costs pursuant to the Anti-SLAPP [*3]Law. The court addresses the parties' arguments in turn.

The Anti-SLAPP Law as amended by chapter 250 applies to the continuation of this action.

Plaintiff incorrectly asserts that the First Department's holding in Gottwald, which held that chapter 250 of the Laws of 2020 did not apply to actions (like this one) commenced prior to its enactment (Gottwald v Sebert, 203 AD3d 488 [1st Dept 2022]), remains in force following the Court of Appeals' decision reviewing it.

While the Court of Appeals was divided 5-1 in holding that chapter 250 was not retroactive to the commencement of all potential SLAPP actions pending at the time of its enactment, the Court unanimously held 6-0 that the First Department erred in Gottwald and that "continuation of [Gottwald's] suit beyond the effective date of the amendments entitles Sebert to recover damages," provided that defendant could establish an anti-SLAPP claim. (Gottwald, 40 NY3d at 259.) It is, as the Court of Appeals held in Gottwald, the continuation of this action following chapter 250's enactment that raises the specter of chapter 250 remedies. The court has noted as much in this action once already. (2023 NY Slip Op 34631[U], *10.) "Plaintiff's theory . . . is like the rabbit hole of Alice in Wonderland, a portal into a realm in which down is up and up is down," and neither the court nor the parties are served by repeating arguments{**83 Misc 3d at 383} that are not only flatly contradicted by the plain text of decisions but have been expressly considered and rejected in this action. (Brivik v Murray, 2014 US Dist LEXIS 26784, *10 [MD Fla, Mar. 3, 2014, case No. 8:11-cv-2101-T-33TGW]; see also D'Lil v Best Western Encina Lodge & Suites, 2010 WL 11655476, *11, 2010 US Dist LEXIS 163123, *31 [CD Cal, Apr. 13, 2010, case No. CV 02-9506 DSF (VBKx)] [noting court's concern that plaintiff's repetition of rejected arguments "was not the first time (plaintiff's counsel) had raised untenable arguments, wasting the Court's time and Defendants' money"].)

In recasting his applicability argument in the instant motion, plaintiff relies upon the Appellate Division, Second Department's recent holding in VIP Pet Grooming Studio, Inc. v Sproule (224 AD3d 78 [2d Dept, Jan. 17, 2024]), which held that a plaintiff's complaint filed days before chapter 250 took effect (and in which no subsequent action had been taken) was not subject to chapter 250.^[FN4] (VIP Pet Grooming Studio, 224 AD3d at 84-88; see also Burton v Porcelain, 223 AD3d 775 [2d Dept, Jan. 24, 2024] [citing VIP Pet Grooming Studio in finding that chapter 250 did not apply in motion to dismiss pending at the time of its enactment].) Although plaintiff argues that VIP Pet Grooming Studio controls, plaintiff is incorrect. This action is immediately distinguishable in the sheer scale of plaintiff's post-enactment litigation activity, and the Court of Appeals has stated that "[t]here is no retroactive effect when these provisions are applied, according to their terms, to the continuation of the action beyond the effective date of the amendments." (Gottwald at 258.) This particularly includes plaintiff's August 2022 effort to again amend his complaint in motion seq No. 005, long after chapter 250 took effect.

At bottom, plaintiff invites the court to disregard the Legislature and the Court of Appeals because plaintiff disagrees with them, which the court cannot do. The court is "bound to apply the law as it exists, and as interpreted by controlling . . . precedents," and cannot "usurp the role of the legislature or the Appellate Courts." (Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd., 150 AD3d 13, 26 [1st Dept 2017]; People v Alvarez-Hernandez, 2002 NY Slip Op 50493[U], *5 [Westchester County Ct 2002].) The court is "not free to disagree, to disregard in the guise of [*4]reinterpretation, or to speculate upon probabilities or personalities," and "must {**83 Misc 3d at 384}follow the decisions and interpretations of our highest court in spite of any individual predilections" plaintiff may have. (United States v Swift & Co., 189 F Supp 885, 901 [ND Ill 1960].) The Legislature and the Court of Appeals have spoken clearly that chapter 250 applies to the continued litigation of existing cases after its enactment, and the court will heed them.

Plaintiff's constitutional objections to anti-SLAPP legislation are misplaced.

Plaintiff asserts that the Anti-SLAPP Law, as amended by chapter 250, violates his state and federal constitutional rights of petition and jury trial. Once again, plaintiff is wrong. "[I]n amending its anti-SLAPP law to set a higher standard of fault for defamation claims involving private individuals . . . the New York legislature sought to protect an important substantive interest: the exercise of free speech about matters of public concern." (Shannon Jankowski & Charles Hogle, SLAPP-ing Back: Recent Legal Challenges to the Application of State Anti-SLAPP Laws, 37 Commcns Law 29, 33 [winter 2022].) "The news media—and those who share their stories with the news media—have faced an onslaught of retaliatory and meritless litigation in recent years," which is a pernicious harm that New York may, and has, sought to curb without offending the State or Federal Constitutions. (Id.)

Federally, the Framers recognized the idea that while "the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate." (Gertz v Robert Welch, Inc., 418 US 323, 340 [1974] [citing James Madison's Report on the Virginia Resolutions of 1798].) While the Supreme Court noted that "the individual's right to the protection of his own good name reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty," the Court has also "been especially anxious to assure to the freedoms of speech and press that 'breathing space' essential to their fruitful exercise," and "[t]o that end this Court has extended a measure of strategic protection to defamatory falsehood." (Gertz at 341-342 [some internal quotation marks omitted].) While "many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier" imposed by that "strategic protection," society's interest in protecting the marketplace of ideas trumps plaintiff's desire for heartbalm. (Gertz at 342.) Put simply, and{**83 Misc 3d at 385} recently, "[t]he First Amendment, we have concluded, requires that we protect some falsehood in order to protect speech that matters." (Counterman v Colorado, 600 US 66, 76 [2023] [internal quotation marks omitted] [discussing Gertz].)

Plaintiff's reliance on decisions from Washington, Minnesota, New Hampshire, and Maine is misplaced. The Supreme Court of Washington premised its jury trial concerns about Washington's anti-SLAPP law entirely upon the Washington Constitution and, while finding that Washington's anti-SLAPP law interfered with plaintiffs' federal First Amendment rights, the court simultaneously noted that "frivolous suits (i.e., those that lack a ' "reasonable basis," ' are 'based on insubstantial claims,' or are 'baseless') are not within the scope of a First Amendment protection." (Davis v Cox, 183 Wash 2d 269, 290, 351 P3d 862, 872 [2015] [some internal quotation marks omitted].) In Leiendecker v Asian Women United of Minnesota, the Minnesota Supreme Court based its holding striking down Minnesota's anti-SLAPP law entirely upon the Minnesota Constitution, without reference to the federal constitution at all. (895 NW2d 623, 634-635 [Minn 2017].) The New Hampshire Supreme Court similarly relied upon state, not federal, constitutional provisions in an ex parte advisory opinion to the New Hampshire Senate against a proposed anti-SLAPP bill. (See Opinion of the [*5]Justices [SLAPP Suit Procedure], 138 NH 445, 446-447, 641 A2d 1012, 1012-1013 [1994].) Although the Maine Supreme Judicial Court noted Seventh and Fourteenth Amendment concerns generally about Maine's anti-SLAPP law in Thurlow v Nelson, the court again (like its sister courts) ruled upon its own state constitution. (2021 ME 58,  17, 263 A3d 494, 501 [2021].)

Plaintiff's cherry-picking of precedent also failed to disclose that constitutional arguments against anti-SLAPP legislation have failed elsewhere.^[FN5] (See Bernardo v Planned Parenthood Fedn. of Am., 115 Cal App 4th 322, 360-361, 9 Cal Rptr 3d 197, 229-230 [4th Dist 2004] [finding that anti-SLAPP laws did not violate plaintiff's First Amendment rights], review denied 2004 Cal LEXIS 3097 [Apr. 14, 2004, No. S123182], cert denied 543 US 942 [2004]; Klem v Access Ins. Co., 17 Cal App 5th 595, 608{**83 Misc 3d at 386} n 6, 225 Cal Rptr 3d 711, 722 n 6 [4th Dist 2017] [collecting authorities and holding that "(a)nti-SLAPP is no impediment to redress of grievances or jury trial rights"], depublication denied 2018 Cal LEXIS 1729 [Feb. 28, 2018, No. S246506].) The Supreme Court of Nevada expressly cited and distinguished Leiendecker and Davis in upholding Nevada's anti-SLAPP law. (See Taylor v Colon, 136 Nev 434, 438-439, 468 P3d 820, 825 [2020].) The District of Columbia Court of Appeals, while limiting certain anti-SLAPP procedures on home rule grounds, rejected plaintiff's constitutional arguments when presented with them. (See Banks v Hoffman, 301 A3d 685, 705-707 [DC, Sept. 7, 2023] [discussing constitutional objections to local anti-SLAPP law and finding that "(w)e need not pause long over these claims"].)

In addressing burden-enhancement and shifting in anti-SLAPP regulation, the Banks court explained:

"We cannot agree that the Act's burden-shifting provision infringes on appellants' constitutional right to petition. The Supreme Court has explained that the right of access to the courts is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court. The burden-shifting provision imposes on SLAPP plaintiffs the burden of showing that the complaint rests on more than unsupported claims that do not meet established legal standards, and of successfully rebutting any argument that the plaintiff could not prevail as a matter of law, after allowing for the weighing of evidence and permissible inferences by the jury. A plaintiff who is shut out of court because it cannot meet that burden has not been denied its constitutional right to petition the courts." (Banks at 706 [internal quotation marks, brackets, ellipsis and citations omitted].)

While not specifically addressing this State's or the Federal Constitution, the Court of Appeals cited Gertz and others in noting that while the "actual malice standard need not apply to private figures," New York and other states "may define for themselves the appropriate standard of liability for those individuals." (Gottwald at 251 [internal quotation marks and citations omitted].) As the court previously discussed in the December decision, "[t]he Court of Appeals has noted and affirmed the expansive language of our State constitutional guarantee . . . of a free press and the consistent tradition in{**83 Misc 3d at 387} this State of providing the broadest possible protection to the sensitive role [*6]of gathering and disseminating news of public events," and that "we value speech and public participation knowing that the power may be misused, aware that the advocacy of some may be injurious or false, refusing to judge in individual cases whether debate itself would be good or bad." (2022 NY Slip Op 34108[U], *5-6 [internal quotation marks and citations omitted].) That New York has chosen to protect more speech under its State Constitution and statutory law than might be required by the Federal Constitution is within New York's sovereign discretion, and "[a]bsent a debilitating constitutional flaw in the Act, this court must effectuate the common will expressed in the purpose of the legislation." (Swails v State, 263 Ga 276, 276, 431 SE2d 101, 102 [1993].) Accordingly, the court finds that chapter 250 is permissible under both the State and Federal Constitutions.

Defendants may seek attorney's fees by motion pursuant to the Anti-SLAPP Law.

Procedurally, plaintiff also objects to awarding fees and costs as part of an order dismissing this action, instead arguing that defendants cannot recover fees and costs without asserting their demand by answering the pleadings in this action with a counterclaim or filing a new action. (Mem of law in support at 6.) Plaintiff relies upon a number of decisions from coordinate state and federal courts, and appellate decisions predating chapter 250. Plaintiff's position is unavailing.

Pursuant to Civil Rights Law § 70-a (1) (a):

"[C]osts and attorney's fees shall be recovered upon a demonstration, including an adjudication pursuant to [CPLR 3211 (g)] . . . , that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law" (emphasis added).

In contrast, "other compensatory damages may only be recovered upon an additional demonstration that the action involving public petition and participation was commenced or continued for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights," and "punitive damages may only be recovered upon an additional demonstration that the action involving public petition and participation was commenced{**83 Misc 3d at 388} or continued for the sole purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights." (Civil Rights Law § 70-a [1] [b], [c] [emphasis added].) That is a marked, and presumably purposeful distinction crafted by the Legislature. While a demand for costs and fees is nondiscretionary and may be premised solely upon a decision granting a CPLR 3211 (g) motion to dismiss, the other discretionary compensatory and punitive damages claims available to deter SLAPPs require progressively higher levels of intent and motive that are more conducive to pleadings and litigation independent of the underlying CPLR 3211 (g) motion to dismiss.^[FN6]

Indeed—and troublingly contrary to plaintiff's argument—the First Department has [*7]addressed this issue in reinstating a motion for fees and costs in Aristocrat Plastic Surgery P.C. v Silva (206 AD3d 26, 29 [1st Dept 2022]).^[FN7] There, as here, a defendant sought attorney's fees and costs as part of a CPLR 3211 (g) motion, which was denied. While the gravamen of the First Department's decision in Aristocrat Plastic Surgery and the parties' arguments concerned whether Supreme Court correctly found that the claim at issue was subject to the Anti-SLAPP Law at all, the question of whether fees and costs could be sought by motion rather than a counterclaim or standalone pleading was posed by the parties and answered by the First Department. And the answer was yes. That the answer was short does not diminish its substance, as the First Department has "broad discretion in determining the level of detail that it provides," and "some issues and actions may require a greater level of detail than others, and discerning which case calls for a heightened level of detail is part of the subjective art of judging." {**83 Misc 3d at 389}(Charalabidis v Elnagar, 188 AD3d 44, 49 [2d Dept 2020], citing NYCTL 2012-A Trust v 1698 Lex Corp., 169 AD3d 577 [1st Dept 2019].) That point is further illustrated by the First Department having affirmed the very practice contemplated, citing itself in Aristocrat Plastic Surgery, nearly a year ago. (See Golan v Daily News, L.P., 214 AD3d 558, 559 [1st Dept 2023].) Plaintiff's problem is not that the First Department has not considered plaintiff's motion versus claim argument, but that the Appellate Division has considered it and does not agree with him.

Even assuming the question remains unsettled following Aristocrat Plastic Surgery or Golan arguendo, the answer would be the same on a fresh slate. In interpreting chapter 250, the court notes the Legislature's clear intent in crafting chapter 250 as a vehicle through which defendants could expeditiously halt SLAPP claims and recover attorney's fees and costs without the burden of the same protracted litigation that chapter 250 was designed to combat. The pre-chapter 250 decisions plaintiff relies upon are unavailing because of the marked changes brought forth in chapter 250, which the Legislature enacted in direct response to its disagreement with the courts' interpretations of the Anti-SLAPP Law, and post-hoc coordinate decisions to the contrary are unpersuasive.^[FN8] (See Senate Introducer's Mem in Support of 2019 NY Senate Bill S52-A [same-as bill to 2019 NY Assembly Bill A5991-A, enacted as L 2020, ch 250]; Aristocrat Plastic Surgery at 29 [citing the sponsoring memorandum in support of chapter 250 and the "narrow interpretation by the courts" of the Anti-SLAPP Law prior to chapter 250].)

Even if, arguendo, the court were to find (which it expressly does not) that chapter 250 was ambiguous or inartful, that clear legislative intent would disfavor plaintiff's argument. (See [*8]People v Vespucci, 144 AD2d 48, 55 [2d Dept 1988] [director of the Organized Crime Task Force could apply for eavesdropping warrants because "literal construction" of a statute is inappropriate when it "circumscribes its application," and "fails to meaningfully incorporate as guiding criteria the policy objectives sought to be achieved by Congress in utilizing the statutory term" (citations omitted)], affd 75 NY2d 434 [1990], cert{**83 Misc 3d at 390} denied 498 US 814 [1990]; Matter of Turner v Department of Fin. of City of N.Y., 242 AD2d 146, 147 [1st Dept 1998] [in interpreting local freedom of information statute, "the spirit and purpose of the act and the objects to be accomplished must be considered and given effect," and a literal reading of the text should "not . . . be adhered to or suffered to defeat the general purpose and manifest policy intended to be promoted" (citation omitted)]; King v Burwell, 576 US 473, 493 [2015] [cautioning that courts should not interpret "statutes to negate their own stated purposes" in interpreting the Patient Protection and Affordable Care Act (quoting New York State Dept. of Social Servs. v Dublino, 413 US 405, 419-420 [1973])].)

Plaintiff's suggestion that the Legislature intended for those it intended to protect through an enhanced anti-SLAPP pre-answer motion to dismiss by requiring those same people to forgo the very pre-answer motion practice the Legislature expressly crafted for them in order to recover the enhanced penalties expressly crafted for them through protracted litigation the Legislature expressly intended to avoid, and that the court should impose such a procedure, is illogical. The defendants in Aristocrat Plastic Surgery argued as much to the First Department, in stating that "Appellants did not file an answer denying the allegations of the Complaint and asserting a counterclaim for alleged damages," as "[s]uch a course of conduct would have caused Appellants to engage in needless and expensive discovery—the very harm that the anti-SLAPP statutes are intended to eliminate." (Reply brief for respondents in Aristocrat Plastic Surgery P.C. v Silva, 206 AD3d 26 [1st Dept 2022] at 6.)

Plaintiff's reliance on federal cases denying fee applications by motion in favor of requiring defendants to pursue separate claims is particularly misplaced because of conflicting federal decisions regarding the applicability of state anti-SLAPP law claims heard in federal court by diversity jurisdiction. (See Jankowski & Hogle, supra.) That the Legislature established a separate cause of action for anti-SLAPP remedies merely reflects the common will of New York that anti-SLAPP remedies be available in federal court (where awarding anti-SLAPP remedies through procedural rules may not carry through diversity procedure) as well as state court. However, nothing in the text or intent of the Legislature precludes awarding fees by motion rather than a pleaded claim.

For proceedings in state court, to the extent the First Department has not already resolved this question in Aristocrat{**83 Misc 3d at 391} Plastic Surgery or Golan, plaintiff's argument remains unavailing.

Plaintiff has not established good cause to conduct anti-SLAPP discovery.

Pursuant to CPLR 3211 (g) (3) (emphasis added), "[t]he court, on noticed motion and upon a showing by the nonmoving party, by affidavit or declaration under penalty of perjury that, for specified reasons, it cannot present facts essential to justify its opposition, may order that specified discovery be conducted" that "shall be limited to the issues raised in the motion to dismiss." Plaintiff has not met this burden.

In seeking discovery from defendant Burke, plaintiff relies solely on his attorney's affirmation as the basis of his purported necessity. That is deficient. The person in the best position to state what information plaintiff has concerning communications between plaintiff and [*9]defendant Burke is plaintiff himself, yet plaintiff has not offered an affidavit detailing his own personal knowledge in the instant motion. That alone is largely fatal to plaintiff's motion for discovery. (See People v Trump, 2023 NY Misc LEXIS 12067, *40 [Sup Ct, NY County, Oct. 30, 2023, index No. 452564/2022] [noting lack of affidavit upon personal knowledge in denying motion to quash subpoena], interim stay denied App Div, 1st Dept, Nov. 2, 2023, Mendez, J., case No. 2023-5460.) Further, plaintiff does not offer an affidavit from anyone asserting that they conducted a search of materials under plaintiff's control regarding communications between plaintiff and defendant Burke at all.

Indeed, a recent First Department decision plaintiff cited for a different point in his memoranda of law illustrates the issue: Carey v Carey (220 AD3d 477 [1st Dept 2023]). In words that might as well have been written at the outset for the instant motion:

"The court's denial of his CPLR 3211 (g) (3) discovery motion was a provident exercise of its discretion. Plaintiff cites no authority—construing CPLR 3211 (g) (3) or otherwise—to support his assertions that he was, by definition, entitled to discovery because the court found certain of the statements potentially defamatory, or because of the enormous burden the anti-SLAPP amendments place on defamation plaintiffs. CPLR 3211 (g) (3) allows for discovery in connection with a motion to dismiss only if, for specified reasons, the nonmovant states,{**83 Misc 3d at 392} under oath, that it cannot present facts essential to justify its opposition, in which case the court may order that specified discovery be conducted notwithstanding the general stay of discovery otherwise effected by CPLR 3211 (g). His statements that facts relevant to actual malice are, as a general matter, typically in the sole possession of a . . . defendant, fall short." (Carey at 478-479 [internal quotation marks and citation omitted].)

In the absence of any proof, the court cannot simply assume that discovery must be necessary to defeat an anti-SLAPP motion. Accordingly, the court will deny plaintiff's motion for CPLR 3211 (g) (3) discovery from defendant Burke.

Plaintiff has not established a substantial basis in fact and law to continue this action.

In opposing a motion to dismiss pursuant to CPLR 3211 (g) (1), plaintiff must demonstrate "that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law." Plaintiff has not done so.

Plaintiff's arguments that chapter 250 does not apply to this action because it was commenced prior to the effective date of chapter 250 do not offer a substantial basis in law as contemplated by the statute following the Court of Appeals' holding in Gottwald and the First Department's holdings affirming the court in this action and denying reargument or leave to appeal (about which the Court of Appeals also denied leave). For the same reasons, plaintiff's arguments do not offer a substantial argument to extend, modify, or reverse existing law.

Turning to the facts, plaintiff's argument is, at its essence, that defendant Burke told defendant Garde false stories of sexually harassing acts by plaintiff, and that Garde published them in an article. Plaintiff offered nothing in support of this in his unverified pleadings, and has continued to offer nothing (either by his word or through supporting statements or documents) in support through the course of three years of protracted motion practice in motion seq Nos. 004 through 008. Plaintiff's unadorned assertions amount to nothing more than the very type of bare notice pleadings that chapter 250 is specifically designed to foreclose. In considering the [*10]standard plaintiff must meet to survive defendants' motion to dismiss, the court notes that the Second Circuit has affirmed dismissal of plaintiff's allegations in plaintiff's parallel litigation against{**83 Misc 3d at 393} Garde's publisher based on the federal plausibility standard, "rejecting Isaly's main argument that he was physically incapable of taking the actions attributed to him in the article—primarily, sending inappropriate emails—because he is quadriplegic and has limited use of his arms and fingers." (Isaly v Boston Globe Media Partners, LLC, 2023 WL 6439901, *1, 2023 US App LEXIS 26124, *2-3 [internal quotation marks and ellipsis omitted], quoting Isaly v Boston Globe Media Partners, LLC, 2022 WL 121283, *1, 2022 US App LEXIS 1006, *1 [2d Cir, Jan. 13, 2022, No. 21-1330-cv].) As the court found, and the First Department affirmed, plaintiff's claims against Garde failed even under the pre-chapter 250 pleading standard. As plaintiff's claims are not even plausible, they cannot be substantial.

Instead, the continuation of this action after the Legislature's enactment of chapter 250 has been a veritable archetype of the strategic litigation against public participation that the Legislature intended to curb in reforming the Anti-SLAPP Law. After the enactment of chapter 250, plaintiff has noticed four motions before the court (mot seq Nos. 005 through 008) and vigorously litigated motions and cross-motions in two others (mot seq Nos. 003 and 004), sought to amend his complaint again, noticed two appeals to the First Department, sought reargument from the First Department when he did not prevail there, and then sought leave from the Court of Appeals. That plaintiff has pursued this course of litigation on allegations that are not even plausible, let alone substantial, harkens directly to the Supreme Court, Westchester County's warning that "SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense," and "[t]he longer the litigation can be stretched out, the more litigation that can be churned, the greater the expense that is inflicted and the closer the SLAPP filer moves to success." (Matter of Gordon v Marrone, 155 Misc 2d 726, 736 [Sup Ct, Westchester County 1992].) Plaintiff has not met his burden in opposing defendants' motions, and the court accordingly finds that plaintiff's claims lack a substantial basis pursuant to CPLR 3211 (g).

The court will conduct a hearing regarding defendants' demands for attorney's fees.

"It is well established that courts have broad discretion in determining an award of attorney fees and costs," and that "New York courts often use the lodestar method, which is based{**83 Misc 3d at 394} on a reasonable hourly rate times a reasonable number of hours expended." (New York Times Co. v City of New York Off. of Mayor, 2023 NY Slip Op 32941[U], *3 [Sup Ct, NY County 2023] [citations omitted].)^[FN9] Courts applying the lodestar method have varied in considering [*11]fee applications on papers alone or through evidentiary hearings. (Compare e.g. I.O. v New York City Dept. of Educ., 2021 WL 2701449, *1, 2021 US Dist LEXIS 122346, *1 [SD NY, June 29, 2021, No. 20-cv-5061 (PAC)] [determining reasonable attorney's fees in IDEA litigation after trial], and Matter of Infinity Q Diversified Alpha Fund Sec. Litig. v XXX, 2023 NY Slip Op 34527[U], *19 [Sup Ct, NY Count 2023] [declining to grant attorney's fees without hearing], with R.S. v New York City Dept. of Educ., 2023 WL 6389118, *1, 2023 US Dist LEXIS 176654, *1 [SD NY, Sept. 29, 2023, No. 21-cv-2257 (JPO)] [determining reasonable attorney's fees in IDEA litigation on papers], and New York Times Co. at *1 [determining fees in FOIL litigation on papers].) If anything, New York courts have generally favored hearings rather than papers in determining fees, especially where there is sharp disagreement at the fore or on the horizon. (See e.g. Matter of Infinity Q Diversified Alpha Fund Sec. Litig., citing Sheridan v Police Pension Fund, Art. 2 of City of N.Y., 76 AD2d 800, 801-802 [1st Dept 1980].) Based upon the litigation of this action thus far, Matter of Infinity Q Diversified Alpha Fund Sec. Litig. is particularly instructive, and the court will conduct a hearing to calculate reasonable attorney's fees and costs.

Conclusion

The court does not minimize plaintiff's incandescent disagreement with defendants' statements in the article. However, the common will of this State has considered and accepted that plaintiff's ill-feeling is an accepted consequence to preserving the marketplace of ideas. Plaintiff's path to relief from that policy decision runs through the Legislature in Albany, not a{**83 Misc 3d at 395} courthouse in New York City. Thus, he has not stated a claim for which relief can be granted and, given the nature of plaintiff's dismissed claims, defendants may now recover their costs and attorneys' fees due to plaintiff's continued litigation of this action.

Accordingly, it is hereby ordered that plaintiff's motion for discovery (mot seq No. 008) is denied; and it is further ordered that plaintiff's motion to lift or vacate the stay in this action (mot seq No. 007) is granted to the extent set forth below; and it is further ordered that the branches of defendant Damian Garde's motion to dismiss this action pursuant to CPLR 3211 (g) as part of motion seq No. 003 and 004 are granted; and it is further ordered that the parties shall contact the court by email to SFC-Part55@nycourts.gov and bkrist@nycourts.gov within 30 days of this decision to schedule a fees hearing.

"(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent: (7) time limitations imposed by the client or the circumstances; (8) the amount involved, and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." (New York Times Co. at *3 [citations omitted].)