First Department Clarifies When Pleadings Lack “a Substantial Basis”

In order to qualify as a SLAPP under New York law, a claim must (a) arise from speech or conduct protected by the anti-SLAPP law, and (b) lack “a substantial basis” in fact and law. A recent First Department case, Karl Reeves v. Associated Newspapers, 2024 NY Slip Op 01898, Appeal No. 504, Case No. 2021-03446 (1st Dep’t, Apr. 9, 2024), clarifies what it means for a claim to lack “a substantial basis” at the motion-to-dismiss stage.

The court determined that any claim dismissed under CPLR 3211(a)(7) for failure to state a claim necessarily lacks “a “substantial basis” for purposes of the anti-SLAPP law. See id. at ¶ 16. This is because the "substantial basis" standard applicable under CPLR 3211(g) to SLAPPs is “more exacting” than the traditional CPLR 3211(a)(7) standard for pleadings generally: under CPLR 3211(a)(7), a court is required to assume that the complaint’s allegations are true, but under CPLR 3211(g), a court can look at some evidence beyond the complaint to test its factual allegations, such as affidavits. See Id. at ¶¶ 10, 20; CPLR 3211(g)(2). But if it is clear from the complaint itself that the plaintiff fails to state a claim under CPLR 3211(a)(7), then the anti-SLAPP standard is necessarily satisfied.