Threatened with retaliatory eviction? Try filing an anti-SLAPP motion in housing court.

[ Note: This article was written immediately before the anti-SLAPP law was updated, so it refers throughout to the old law as the "current law," and the amended law as the “proposed law."]

From the Fall 2020 Issue of the New York Real Property Law Journal, Vol. 48 No.3.

As HSTPA Enhances Anti-Retaliation Protections for Tenants, Don’t Forget About New York’s Anti-SLAPP Law

Julio Sharp-Wasserman

New York’s Housing Stability and Tenant Protection Act (HSTPA), passed in June 2019, expanded protections in the Real Property Law (RPL) for tenants hauled into summary proceedings by their landlords in retaliation for reporting or protesting housing code violations.[1] This form of strike suit has long plagued the courts. Accordingly, tenants in New York State have long availed themselves of the “retaliatory eviction” defense, both under the RPL,[2]  and, prior to the enactment of the statutory protection in 1979, as a common law and First Amendment defense.[3] Under RPL § 223-b, if a tenant proves that her landlord initiated a frivolous summary proceeding in retaliation for the tenant’s complaints to a governmental authority or the landlord herself about violations of laws regulating residential dwellings, or in retaliation for the tenant’s participation in a tenant organization, the tenant can obtain damages, attorney’s fees, and other remedies.

Less commonly invoked in the landlord-tenant context are the anti-retaliation provisions of New York’s “anti-SLAPP” law.[4] The anti-SLAPP law provides procedural protections and monetary relief to defendants subjected to “Strategic Lawsuits Against Public Participation,” a type of frivolous lawsuit filed to retaliate against a defendant for exercising her constitutional right to speech and petition. One of the law’s applications is to landlords’ tort lawsuits designed to stifle tenant advocates’ efforts to report housing code violations to government agencies.

A New York City tenant defendant could argue for an analogous application of the anti-SLAPP law to a retaliatory holdover or nonpayment proceeding in the housing part of the New York City Civil Court. Although unusual, a tenant’s invocation of the anti-SLAPP statute in Housing Court appears to be allowed under the governing procedural rules. An anti-SLAPP defense would afford certain substantive and procedural advantages over an RPL retaliatory eviction defense and would afford belt-and-suspenders benefits when applied in conjunction with with an RPL defense.

Moreover, amendments to New York’s anti-SLAPP law that await the Governor’s signature at the time of this article’s publication[5] would significantly broaden the law’s protections in a manner that would accordingly make anti-SLAPP an even more potent defense in the landlord-tenant context. This article discusses the potential applications of both New York’s current anti-SLAPP statute and the proposed, broader anti-SLAPP law in the context of summary proceedings in Housing Court. 

I.              Anti-Retaliation Protections in the Real Property Law

The RPL provides a private right of action for damages, attorney’s fees, costs, and other appropriate relief for tenants who are hauled into summary proceedings by their landlords in retaliation for certain protected conduct.[6] RPL § 223-b(1) provides that:

No landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for (a) A good faith complaint, by or in behalf of the tenant, to the landlord, the landlord’s agent or a governmental authority of the landlord’s alleged violation of any health or safety law, regulation, code, or ordinance, the warranty of habitability…the duty to repair…or any law or regulation which has as its objective the regulation of premises used for dwelling purposes…; or (b) Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement, the warranty of habitability…, the duty to repair…,or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes…; or (c) The tenant’s participation in the activities of a tenant’s organization.

RPL § 223-b(1). 

 In practical terms, this protection can be invoked in a few situations. First, RPL § 223-b can be invoked when a landlord institutes a frivolous action to evict or collect purportedly unpaid rent in order to punish a tenant for reporting unlawful building conditions to the Department of Buildings, the Division of Housing and Community Renewal, or other city agencies that regulate residential housing. In New York City, tenants often report such violations via 3-1-1 calls. Second, the provision applies when a landlord files a lawsuit to punish a tenant for bringing repair issues or legal violations to the landlord’s attention, even when the tenant has not formally reported a violation.[7] The law also protects tenant organizing activities.[8] Retaliation under the RPL is sometimes asserted as an affirmative defense and sometimes as a counterclaim.[9]

Courts apply a burden-shifting framework to RPL § 223-b retaliation claims.[10] Section 223-b(5) creates a “rebuttable presumption that the landlord is acting in retaliation…if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession, or attempted to substantially alter the terms of the tenancy, within one year after” a good faith complaint to a governmental authority, the landlord himself, or an agent of the landlord.[11] If the tenant establishes this prima facie case, the burden shifts to the landlord to “establish a non-retaliatory motive for his acts by a preponderance of the evidence.”[12] If the tenant prevails, she can obtain damages and attorney’s fees, in addition to other relief.[13]

II.            Anti-Retaliation Protections in New York’s Current Anti-SLAPP Law

New York’s anti-SLAPP statute was enacted in 1992 “to prevent well-heeled public permit holders from using the threat of personal damages and litigation costs…as a means of harassing, intimidating or…punishing individuals, unincorporated associations…and others who have involved themselves in public affairs by opposing them.”[14] During debates in the New York Senate, proponents of the bill cited a history of abuses among developers and other business interests who sought to silence opponents of projects or proposals through frivolous litigation.[15] This particular strain of strike suit is termed a SLAPP, or “Strategic Lawsuit Against Public Participation,” a term coined by Professors George Pring and Penelope Canaan in 1988.[16]

Courts assessing an anti-SLAPP defense under New York law employ a threshold twofold inquiry. First, under Civil Rights Law § 76-a(1)(b), the court must determine whether the plaintiff is “a public applicant or permittee,” defined as “any person who has applied for or obtained a permit, zoning change, lease, license, or other permission from any government body.”[17] Next, under Civil Rights Law § 76-a(1)(a), the court must decide whether the lawsuit is an “action involving public petition and participation,” defined as “an action, claim, cross-claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.”[18] In other words, as under RPL § 223-b, the court must determine that the defendant engaged in qualifying protected activity and that the plaintiff’s lawsuit is causally related to that protected activity.

Once a defendant has made an initial showing of protected activity and causation, the plaintiff faces a heightened burden to demonstrate that her claim has a “substantial basis.” Procedurally, an anti-SLAPP motion can be employed via a motion to dismiss or a motion for summary judgment. The dismissal and summary judgment provisions of the New York Civil Practice Law and Rules each incorporate the relevant Civil Rights Law provisions by reference. Rule 3211(g) provides:

A motion to dismiss…in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in [N.Y. Civ. Rights Law § 76-a(1)(a)], shall be granted unless…the party responding to the motion demonstrates 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.

N.Y. CPLR 3211(g). Rule 3212(h) provides:

A motion for summary judgment, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation, as defined in [N.Y. Civ. Rights Law § 76-a(1)(a)], shall be granted unless the party responding to the motion demonstrates that the action, claim, cross claim or counterclaim has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.

N.Y. CPLR 3212(h). In requiring the plaintiff to show that her claim has a “substantial basis in law,” in the case of 3211(g), or a “substantial basis in fact and law,” as in the case of 3212(h), both provisions amend prior law to require a heightened showing by the plaintiff relative to the burden that would otherwise apply at each respective procedural stage.[19] Moreover, the legislature viewed “substantial” as a more stringent standard than the “reasonable” standard otherwise applicable to sanctions for frivolous litigation.[20]

As an added benefit to the defendant, an anti-SLAPP hearing must be calendared on a preferential basis.[21] And if the SLAPP target prevails at this expedited hearing, the court will not only dismiss the action, but may also in its discretion award attorney’s fees, as well as, under aggravated circumstances, compensatory and punitive damages.[22] Defendants typically seek the monetary relief elements of the anti-SLAPP remedy via counterclaim.[23]

In at least one case, the anti-SLAPP law has been invoked successfully by a tenant advocacy group sued in retaliation for reporting housing code violations to city agencies. In New Line Realty Corp. v. United Comms. of Univ. Heights, a landlord sued the Northwest Bronx Community and Clergy Coalition and other housing organizers, who had been advocating for tenants by helping them report housing code violations to the Department of Housing Preservation and Development (HPD) pursuant to a contract with the agency.[24] The landlord claimed trespass, libel and tortious interference with prospective economic advantage, based on the defendant’s entering the building to communicate with tenants, help them organize, and distribute flyers.[25] The New York Supreme Court granted the defendant tenant advocacy group’s anti-SLAPP motion. The court found that the plaintiff landlord was a public applicant or permittee, having obtained a number of “permits, licenses, and subsidies,” including Certificates of Occupancy, Multiple Dwelling Registrations, and rental subsidies.[26] The Court further found that the plaintiff’s claims were materially related to the defendants’ efforts to report housing violations to HPD, efforts which amounted to a challenge to plaintiff’s fitness to “maintain those permits, licenses, and funds” with respect to the apartment buildings at issue.[27]

Based on New Line Realty, there is reason to believe that a tenant could successfully invoke the anti-SLAPP law in a retaliatory summary proceeding. If a tenant reported violations of the NYC Housing Maintenance Code, Construction Codes, or some other pertinent law or regulation to a city agency and was hauled into Housing Court under circumstances that indicated that the proceeding was in retaliation for such reporting, such a case would seem to be analogous to New Line Realty. The tenant would have been challenging the landlord’s fitness to hold permits or receive state or local rental subsidies that are contingent on compliance with laws and regulations pertaining to residential dwellings.

There are some factual differences between these two situations, but none that are legally relevant. In New Line Realty, the retaliatory claims at issue were tort claims, and the landlord sued a non-profit organization advocating on behalf of tenants, rather than the tenants themselves. But neither the content of the claims nor the identity of the defendant is material to anti-SLAPP analysis. Courts consider only the nature of the defendant’s activity that provoked a lawsuit and the identity of the plaintiff, both of which are common to the two scenarios.

Informal advocacy, as through, for instance, organizing tenants or posting flyers drawing attention to illegal housing conditions, could constitute protected activity as well. Several courts have found protected activity even when a defendant did not file a complaint with an agency or otherwise directly participate in a governmental process. For instance, in Duane Reade v. Clark, the New York County Supreme Court held that a concerned citizen’s publication of an advertisement criticizing Duane Reade’s construction of a billboard next to a September 11th memorial park constituted protected activity. The court based this conclusion on the temporal proximity between publication of the ad and earlier publicity in the same newspaper concerning Duane Reade’s application for a permit to construct the sign.[28] In National Fuel Gas Distribution Corp. v. PUSH Buffalo, the Fourth Department held that a community organization’s demonstration against plaintiff energy company’s misuse of government funds intended to assist low-income customers with heating costs constituted protected activity. The purpose of the protest, the court noted, was to obtain a meeting with the CEO challenge the company’s application to renew the permit at issue.[29]

To succeed in her anti-SLAPP defense, a defendant activist would have to in her speech reference the plaintiff landlord’s permitted conduct—it is not sufficient merely that the landlord holds various permits. In Guerrero v. Carva, the First Department held that a residential tenant’s act of distributing flyers criticizing a landlord did not constitute protected activity, because the numerous evictions and discriminatory employment practices referenced in the flyer did not encompass any conduct violative of the conditions of a permit, and the flyer did not suggest that any such violation had occurred.[30]

There may be some situations in which RPL 223-b applies but the anti-SLAPP law does not. It is unclear, for instance, whether a complaint to the landlord herself would qualify as protected activity, as it does under § RPL 223-b. One could argue that this constitutes “reporting” or “commenting” on the landlord’s fitness to hold relevant permits; but there is no case law clarifying this issue. The basis for such an anti-SLAPP defense is especially weak if the complaints concern mere violations of a lease for an unregulated apartment, or some other matter that would not be within the jurisdiction of the relevant regulatory agencies.

III.          Anti-Retaliation Protections in a Potential Amended Anti-SLAPP Law

Amendments to New York’s anti-SLAPP law that await the Governor’s signature would make the availability of the above-described protections more certain and enhance their potency. New York Senate Bill No. 52-A/Assembly Bill No. 5991A, if signed into law, would strengthen the anti-SLAPP law’s protections in at least two ways relevant to tenants.

First, the definition of protected activity would be significantly broader. The proposed new definition provides an even clearer basis both for the argument that a communication with a government agency regarding a landlord’s legal violations is protected activity, and for the argument that tenant activism is protected activity. The amended law would protect “any communication in a place open to the public or a public forum in connection with an issue of public interest” and “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”[31]

The new definition of protected activity, in other words, applies to capacious categories of both speech and petitioning conduct. Questioning a landlord’s fitness to hold a government-issued permit in a communication with a government body is merely one form of petitioning activity, and a narrow and odd subcategory at that. A broader statutory definition that encompasses all petitioning activity could only aid tenant defendants sued for reporting housing code violations, by mitigating the unpredictability of any particular judge’s determination of what precisely it means to “report on, comment on, rule on, challenge or oppose” a landlord’s “application or permission.”[32] Moreover, it seems straightforward to argue that any protest on public property against a landlord’s illegal activity both takes place in a public forum, and pertains to matters of public concern, namely, a landlord’s violation of the law. By contrast, under the current statute, as discussed, whether there is the requisite causal relationship between a defendant’s protest and a landlord’s lawsuit can depend on finer details of the content of the defendant’s speech.

Second, the imposition of attorney’s fees on a prevailing tenant would be a certainty rather than a possibility subject to judicial discretion. Under the amended law, the award of attorney’s fees and costs is mandatory rather than permissive, as the law would provide that attorney’s fees and costs “shall,” rather than “may” be awarded upon a “demonstration 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.”[33] This change, needless to say, would make it more likely that a tenant who succeeds on an anti-SLAPP motion will be adequately compensated for her trouble. But this amendment also would usher in a more profound, systemic change: it would enable lawyers to take landlord-tenant anti-SLAPP cases on contingency, thus potentially begetting a new legal market and increasing the availability of legal representation for tenants faced with retaliatory evictions.[34]  

IV.          Housing Court Jurisdiction to Adjudicate an Anti-SLAPP Motion

A more difficult question is whether the housing part of the City Civil Court, in which summary proceedings typically take place, would have jurisdiction to decide an anti-SLAPP motion. While it does not appear that this issue has ever been adjudicated, the plain language of the CPLR and the City Civil Court Act (CCA) indicate that the Housing Court has the requisite jurisdiction. Moreover, procedural rules specific to summary proceedings appear to disfavor the severance of an anti-SLAPP counterclaim.

The CCA incorporates the relevant parts of CPLR 3211 and 3212 into City Civil Court procedure. The CPLR provides that it governs “the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute.”[35] The City Civil Court Act, a candidate inconsistent statute, provides that “[m]otion practice in the court, including time provisions for the making and decision of motions…and practice relating to motions before, during and after trial, shall be governed by the CPLR, except as this act otherwise provides.”[36] The CCA deviates from the CPLR with respect to motions to dismiss, but these exceptions do not pertain to the anti-SLAPP provision at 3211(g);[37] and the CCA does not alter CPLR 3212 summary judgment procedure.

Moreover, procedural rules specific to the housing part do not prohibit the filing of an anti-SLAPP counterclaim and indeed appear to disfavor its severance. Real Property and Proceedings Law § 743 provides that, in a summary eviction proceeding, “the answer may contain any legal or equitable defense, or counterclaim.” Nevertheless, in practice, the Housing Court usually severs tenants’ counterclaims, without prejudice to the tenant pursuing them in a separate plenary action.[38] The justification for this practice is that “the primary purpose of the summary proceeding statutes is the speedy and inexpensive determination of landlord-tenant controversies,”[39] and counterclaims concerning matters not directly related to the possessory interests at stake frustrate this policy goal. For instance, courts have severed counterclaims for breach of the warranty of habitability in holdover proceedings,[40] and counterclaims for harassment in nonpayment proceedings.[41] But there is an exception to this general rule and practice for counterclaims that are “inextricably intertwined” with the landlord’s claims,[42] in which case the same value of judicial economy counsels against severance.[43] For instance, a counterclaim of actual or constructive eviction to offset a payment of rent in a nonpayment proceeding is regarded as “inextricably intertwined” with the payment of rent.[44]

Based on these principles, an anti-SLAPP counterclaim should not be severed. New York courts generally do not sever retaliatory eviction counterclaims seeking monetary relief in summary proceedings,[45] which suggests that the Housing Court also would view an anti-SLAPP counterclaim, which seeks the same forms of monetary relief for an essentially identical harm, as “inextricably intertwined” with the underlying action. Moreover, New York courts appear not to sever counterclaims for attorney’s fees in other contexts;[46] in fact, the First and Second Departments have gone so far as to deny a tenant the right to assert a claim for attorney’s fees in a separate plenary action when the tenant could have requested this relief via counterclaim in a prior summary proceeding, on the grounds that pursuing a separate action for attorney’s fees would constitute impermissible claim-splitting.[47]

Furthermore, more generally, the Housing Court has jurisdiction to award the remedies of attorney’s fees, compensatory damages, and punitive damages. Under CCA § 110(c), the court for the housing part may “employ any remedy…or sanction authorized by law for the enforcement of housing standards” if it believes that such remedy will be “effective to accomplish compliance or to protect and promote the public interest.”[48] This broad remedial authority encompasses punitive damages[49] and compensatory damages.[50] And the Housing Court awards attorney’s fees in several contexts. For instance, RPL § 234 specifically authorizes a tenant to counterclaim for attorney’s fees whenever a lease provides for a landlord to recover attorney’s fees.[51] Furthermore, N.Y. Ct. R. 130 permits the award of attorney’s fees as a sanction for frivolous conduct,[52] and extends this rule to the City Civil Court system.[53]

V.            Potential Advantages of Anti-SLAPP over RPL § 223-b

The obvious following question is whether there is any practical reason to invoke an anti-SLAPP defense in housing court, given the protections already afforded by RPL § 223-b. While there is significant overlap in protected conduct and remedies, the anti-SLAPP law affords certain advantages. Moreover, given that each law has some unique benefits and areas of coverage, a belt-and-suspenders strategy is generally advisable, as it is possible that one defense will compensate for the limitations of the other in application.

First, anti-SLAPP rules are better designed to mitigate the burdens inherent in defending a lawsuit. The anti-SLAPP law uniquely requires an expedited hearing.[54] Insofar as a frivolous holdover or non-payment action presents a substantial burden of time or resources on a defendant, it may be in her interest to dispose of the matter quickly. The proposed amended anti-SLAPP law would mitigate these burdens further, as it additionally provides that pending the resolution of an anti-SLAPP motion, “[a]ll discovery, pending hearings, and motions” shall be stayed.[55]

Second, unlike RPL § 223-b, the anti-SLAPP law’s protections are not limited to tenants of “rental residential premises except owner-occupied dwellings with less than four units.”[56] This limitation in RPL § 223-b has been applied to exclude, for example, renters of commercial premises,[57] residents of trailers who pay rental fees to a lot owner,[58] licensees present on residential rental premises,[59] and residential renters in owner-occupied dwellings with less than four units.[60] Neither the current nor the proposed amended anti-SLAPP provisions, by contrast, are in any way limited depending on the identity of the defendant.

Third, the anti-SLAPP burden-shifting framework is arguably more favorable to the tenant. There is no requirement in the anti-SLAPP law that a defendant make an initial showing that her challenge to the plaintiff’s fitness to hold a permit was made in “good faith.” In RPL 223-b cases, by contrast, the threshold issue of good faith can be heavily litigated.[61] Additionally, once the burden shifts to the plaintiff, the anti-SLAPP law imposes a uniquely defined heightened burden of proof at whatever procedural stage it is adjudicated.[62]

VI.          Conclusion

While novel, the argument that a retaliatory eviction is a SLAPP could succeed. Individual success on an anti-SLAPP motion in a test case could lead to the availability of a powerful new defense tool for New York City tenants. At worst, the anti-SLAPP counterclaim would be severed, without prejudice to the defendant pursuing a separate plenary action in the Civil Court or the Supreme Court. In any case, this maneuver is worth an attempt.

—

[1] See Gerald Lebovits et al., New York’s Housing Stability and Tenant Protection Act of 2019: What Lawyers Must Know-Part III, 91 N.Y. St. B.J. 33, 35-36 (2019).

[2] See RPL § 223-b.

[3] See, e.g., Portnoy v. Hill, 57 Misc. 2d 1097, 1100, 294 N.Y.S.2d 278, 281 (Binghamton City Ct. 1968) (recognizing retaliatory eviction as an equitable defense in a summary proceeding); Markese v. Cooper, 70 Misc. 2d 478, 481, 333 N.Y.S.2d 63, 75 (Sup. Ct., Monroe Co.1972) (“It is apparent that without such a defense, regardless of how it is labeled, the threat of eviction would coerce the most justifiable complaints into a submissive silence. A landlord could, with impunity, continue to rent a dwelling containing the most flagrant and reprehensible housing violations and the elaborate legislative scheme to ensure compliance with the housing laws would thus be circumvented.”); Hosey v. Club Van Cortland, 299 F. Supp. 501, 504-506 (S.D.N.Y. 1969) (holding that the First Amendment, as incorporated through the Fourteenth Amendment, prohibits a state court from evicting a tenant when the “overriding reason the landlord is seeking the eviction is to retaliate against the tenant for an exercise of his constitutional rights,” in this case the tenant’s First Amendment rights to organize other tenants and file complaints with city officials); see also Major James A. Hughes, Retaliatory Eviction, 102 Mil. L. Rev. 143, 146-50 (1983).

[4] See N.Y. Civ. Rights Law §§ 70-a, 76-a; CPLR 3211(g), 3212(h).

[5] S. B. S52A (N.Y. 2020); Assemb. B. A5991A (N.Y. 2019).

[6] See RPL § 223-b(3).

[7] Housing Stability and Tenant Protection Act (HSTPA) redefined protected activity in the RPL to encompass complaints to the landlord herself. Gerald Lebovits et al.,  supra note 1, at 35; RPL § 223-b(1)(a) (defining protected activity to encompass a “good faith complaint . . .  to the landlord, the landlord’s agent or a governmental authority”).

[8] See RPL § 223-b(1)(c).

[9] See, e.g., Pena v. Lockenwitz, 53 Misc. 3d 428, 432, 36 N.Y.S.3d 574, 577 (Albany City Ct. 2016); Martens v. O'Leary, 40 Misc. 3d 1201(A), 1201(A), 972 N.Y.S.2d 144, 144 (Dist. Ct., 3d Dist., Suffolk Co. 2013); Ghadamian v. Channing, 295 A.D.2d 127, 129, 742 N.Y.S.2d 632, 633 (1st Dep’t 2002); Morris I LLC v. Baez, 62 Misc. 3d 1227(A), at n.1, 113 N.Y.S. 3d 833, at n.1 (Civ. Ct., Bronx Co. 2019).

[10] See, e.g., Matter of Kirkview Assoc. LP. v. Amrock, 160 A.D.3d 1108, 1110, 75 N.Y.S.3d 288, 291 (3d Dep’t 2018); 1540 Wallco, Inc. v. Smith, 54 Misc. 3d 1207(A), 52 N.Y.S.3d 247 (Civ. Ct., Bronx Co. 2017); Bender v. Olsen, 2019 N.Y. Misc. LEXIS 5930, at *6-*7 (Justice Ct., Town of Cornwall, Orange Co. 2019).

[11] HSTPA amended the RPL to extend the time period for establishing presumptive retaliation from six months to one year. HSTPA also extended the presumption to non-payment proceedings. See RPL § 223-b(5); Lebovits et al., supra note 1, at 35-36.

[12] HSTPA amended the RPL to require a landlord to prove a “non-retaliatory motive,” rather than simply a “credible explanation.” See RPL § 223-b(5); Lebovits, supra note 1, at 35.

[13] See RPL § 223-b(3).

[14] See N.Y. Civ. Rights Law § 76-a; see also Adelphi Univ. v. Committee to Save Adelphi, No. 37161-95, 1997 WL 34848950, at *2 (Sup. Ct., Nassau Co. 1997).

[15] See Senate Debate Transcripts, L. 1992, ch. 767, New York Legis. Serv.

[16] The term “SLAPP” was coined by Professors George Pring and Penelope Canan in a pair of articles they co-authored in 1988. See Penelope Canan & George W. Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches, 22 L. & Soc’y Rev. 385 (1988); Penelope Canan & George W. Pring, Strategic Lawsuits Against Public Participation, 35 Soc. Probs. 506 (1988).

[17] See Duane Reade, Inc. v. Clark, 2 Misc. 3d 1007(A), 784 N.Y.S.2d 920 (Sup. Ct., N.Y. Co. 2004) (quoting N.Y. Civ. Rights Law § 76-a(1)(b)).

[18] See id. (quoting N.Y. Civ. Rights Law § 76-a(1)(a)).

[19] See Int’l Shoppes v. At the Airport, 131 A.D.3d 926, 931, 16 N.Y.S.3d 72, 77 (2d Dep’t 2015) (Miller, J., concurring in part and dissenting in part); Hariri v. Amper, 51 A.D.3d. 146, 150-51, 854 N.Y.S.2d 126, 129 (1st Dep’t 2008); Guerrero v. Carva, 10 A.D.3d 105, 106, 779 N.Y.S.2d 12, 14 (1st Dep’t 2004); Duane Reade, 2 Misc. 3d 1007(A), 784 N.Y.S.2d 920.

[20] Duane Reade, 2 Misc. 3d 1007(A), 784 N.Y.S.2d 920; Letter from Assemblyman William Bianchi to Governor Cuomo (July 14, 1992) (re: A. 4299, Bill Jacket at 13-14); CPLR 8303-a(a)(2) (providing for sanctions for a claim that is “commenced or continued in bad faith without any reasonable basis in law or  fact  and  could  not  be  supported by a good faith argument for an extension, modification or reversal of existing law”).

[21] See, e.g., CPLR 3211(g), 3212(h) (“The court shall grant preference in the hearing of such motion.”).

[22] See N.Y. Civ. Rights Law § 70-a(1).

[23] See, e.g., Edwards v. Martin, 158 A.D.3d 1044, 1045, 72 N.Y.S.3d 606 (3d Dep’t 2018); Joglo Realties, Inc. v. Marionovsky, 2015 NY Slip Op 30754(U) (Sup. Ct., Kings Co. 2015); Duane Reade, 2 Misc. 3d 1007(A), 784 N.Y.S.2d 920.

[24] New Line Realty V Corp. v. United Comms. of Univ. Heights, No. 1021/2004, 2006 N.Y. Misc. LEXIS 2872, at *3-*5 (Sup. Ct., Bronx Co. 2006).

[25] See id. at 3-4.

[26] See id. at 9-10.

[27] See id.

[28] 2 Misc. 3d 1007(A), 784 N.Y.S.2d 920.

[29] 104 A.D.3d 1307, 1308, 962 N.Y.S.2d 559, 559 (4th Dep’t. 2013).

[30] 10 A.D.3d 105, 118, 779 N.Y.S.2d 12, 23.

[31] S. B. S52A (N.Y. 2020); Assemb. B. A5991A (N.Y. 2019).

[32] See N.Y. Civ. Rights Law § 76-a(1)(a).

[33] S. B. S52A (N.Y. 2020); Assemb. B. A5991A (N.Y. 2019).

[34] See Ketchum v. Moses, 24 Cal.4th 1122, 1131, 17 P.3d 735, 741 (2001) (noting that mandatory fee-shifting “encourages private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement.”); see also Samantha Brown & Mark Goldowitz, The Public Participation Act: A Comprehensive Model Approach to End Strategic Lawsuits Against Public Participation in the USA, Rev. of Eur. Community and Int’l Envtl. Law 19(1): 3-13 (2010) (“The single most important component of anti-SLAPP legislation is the ability of a defendant to recover attorney’s fees. The ability to recoup fees allows a defendant who otherwise could not afford an attorney to secure one on a contingency basis.”).

[35] CPLR 101.

[36] N.Y.C. Civ. Ct. Act § 1001.

[37] N.Y.C. Civ. Ct. Act § 1002.

[38] See, e.g., Titleserv, Inc. v. Zenobio, 210 A.D.2d 314, 314, 619 N.Y.S.2d 768, 769 (2d Dep’t 1994); Central Blvd. Bldg. Corp. v. Purville, 63 Misc.3d 1201(A), at *2, 114 N.Y.S.3d (City Ct. of Mount Vernon, Westchester Co. 2019); Ring v. Arts Int’l, Inc., 7 Misc.3d 869, 880, 792 N.Y.S.2d 296, 305 (Civ. Ct., N.Y. Co. 2004).

[39] See 525 Jericho Realty LLC v. Anuj Rani Grp., LLC, 64 Misc. 3d 875, 878, 105 N.Y.S.3d 695, 697 (Dist. Ct., 1st Dist., Nassau Co. 2019) (citing Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 43:40 (5th ed. 2018)); see also Haskell v. Surita, 109 Misc. 2d 409, 413-14, 439 N.Y.S.2d 990, 991-93 (Civ. Ct., N.Y. Co. 1981).

[40] See e,g., Payne v. Rivera, 28 Misc. 3d 469, 470, 904 N.Y.S.2d 878, 880  (Civ. Ct., Kings Co. 2010).

[41] See e.g., Severin v Rouse, 134 Misc. 2d 940, 948, 513 N.Y.S.2d 928, 934 (Civ. Ct., N.Y. Co. 1987), Ain v. Vasques, 40 Misc. 3d 1202(A), 972 N.Y.S.2d 142 (Dist. Ct., Nassau Co. 2013).

[42] See Central Blvd. Bldg. Corp., 63 Misc.3d 1201(A), at *2, 114 N.Y.S.3d; Ring, 7 Misc. 3d at 880, 792 N.Y.S.2d at 305 (Civ. Ct., New York Co. 2004); Haskell, 109 Misc. 2d at 414, 439 N.Y.S.2d at 993.

[43] See Chinatown Pres. HDFC v. Ya Hua Chen, 27 Misc.3d 1213(A), 910 N.Y.S.2d 761 (Civ. Ct., N.Y. Co. 2010); Ring, 7 Misc. 3d at 881.

[44] See Jericho Realty LLC v. Anuj Rani Grp., LLC, 64 Misc. 3d 875, 878, 105 N.Y.S.3d 695 (Dist. Ct., Nassau Co. 2019); Ring, 7 Misc. 3d at 880, 792 N.Y.S.2d at 305.

[45] See, e.g., Mayfair York L.L.C. v. Zimmerman, 183 Misc. 2d 282, 288, 702 N.Y.S.2d 494, 499 (Civ. Ct., N.Y. Co. 1999) (awarding damages in a summary proceeding for a retaliatory eviction counterclaim); In re 20 Henry St. Assocs. LLC, 2004 NYLJ LEXIS 3661, *11-*14 (Civ. Ct., Kings Co. 2004) (entertaining and dismissing a retaliatory eviction counterclaim); Pena v. Lockenwitz, 53 Misc. 3d 428, 432, 36 N.Y.S.3d 574, 577 (City Ct., Albany Co. 2016) (finding a retaliatory eviction claim “part and parcel of tenant’s defense to landlord’s claim for rent” and thus unseverable); Weil v. Kaplan, 168 Misc. 2d. 68, 71, 643 N.Y.S.2d 312, 314 (Dist. Ct., Nassau Co. 1996) (entertaining a retaliatory eviction counterclaim while severing a counterclaim for damages for failure to provide electricity, water, and heat).

[46] See RPL § 234 (authorizing a counterclaim for attorney’s fees in a summary proceeding when the lease permits the landlord to recover attorney’s fees); see also Furnished Dwellings LLC v. Households Headed by Women, 62 Misc. 3d 864, 866, 92 N.Y.S.3d 542, 544 (Civ. Ct., N.Y. Co. 2018) (noting that a tenant may seek attorney’s fees under RPL § 234 via counterclaim in a summary proceeding or via a separate action).

[47] See O'Connell v. 1205-15 First Ave. Assoc. LLC, 28 A.D.3d 233, 234, 813 N.Y.S.2d 378, 379 (1st Dep't 2006); 67-25 Dartmouth St. Corp. v. Syllman, 29 A.D.3d 888, 890, 817 N.Y.S.2d 299, 301 (2d Dep’t 2006). But see Caracaus v. Conifer Cent. Square Assocs., 158 A.D.3d 63, 71-72, 68 N.Y.S.3d 225, 231 (4th Dep’t 2017).

[48] See also Davis v. Williams, 92 Misc. 2d 1051, 1055, 402 N.Y.S.2d 92, 94 (N.Y. Civ. Ct., Kings Co. 1977).

[49] See id.; Williams v. Llorente, 115 Misc. 2d 171, 172-73, 454 N.Y.S.2d 930, 931-32 (1st Dep’t 1982).

[50] See Llorente, 115 Misc. 2d at 171-72, 454 N.Y.S.2d at 931.

[51] “[T]here shall be implied in such lease…an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant.” RPL § 234.

[52] N.Y. Ct. R. 130-1.1(a).

[53] N.Y. Ct. R. 130-1.4; see also Active Care Med. Supply Corp. v. Delos Ins. Co., 55 Misc.3d 144(A), 57 N.Y.S.3d 674 (2d Dep’t 2017).

[54] See CPLR 3211(g), 3212(h).

[55] S. B. S52A (N.Y. 2020); Assemb. B. A5991A (N.Y. 2019).

[56] See RPL § 223-b(6).

[57] Tirse v. Andrews, 128 A.D.3d 1112, 1114, 8 N.Y.S.3d 711, 713 (3d Dep’t 2015).

[58] See Matter of Lazy Acres Park, LLC v. Ferretti, 118 A.D.3d 1406, 1407, 988 N.Y.S.2d 364, 365 (4th Dep’t 2014).

[59] See Rogers v. Payne, 65 Misc. 3d 1210(A), 119 N.Y.S.3d 10 (Civ. Ct., Queens Co. 2019).

[60] See Weil v. Kaplan, 168 Misc. 2d 68, 70, 643 N.Y.S.2d 312, 314 (Dist. Ct., Nassau Co. 1996), aff'd, 175 Misc. 2d 482, 483, 670 N.Y.S.2d 666, 667 (2d Dep’t 1997).

[61] See, e.g., Bender, 2019 N.Y. Misc. LEXIS 5930, at *6-*7; Martens 40 Misc. 3d  at 1201(A), 972 N.Y.S.2d at 144); Morning Light Realty, LLC v. Brown, 62 Misc. 3d 274, 286-88, 87 N.Y.S.3d, 450, 459-61 (City Ct., Kings Co. 2019).

[62] See Bender, 2019 N.Y. Misc. LEXIS 5930, at *6-10.