### Isaly v Garde 2024 NY Slip Op 30490(U) February 14, 2024 Supreme Court, New York County Docket Number: Index No. 160699/2018 Judge: James E. d'Auguste Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF D O

C

. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/ 14/ 2024


### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: Hon. James E. d'Auguste Justice -------------------------------------X

SAMUEL D. ISALY, Plaintiff,
-vDAMIAN GARDE, DELILAH BURKE, Defendants

. ----------------------------X PART 55

INDEX NO.

MOTION DATE 160699/2018 06/23/2023, 09/19/2023 003, 004, 007, MOTION SEQ. NO. 008 DECISION + ORDER ON MOTION

Plaintiffmoves inMotion Seq. No 007 for an ordervacatingthe stay and protective orders granted in this defamation action as part ofthe Court's December 6, 2022 decision and order published at 2022 NY Slip Op 34108(U) (the "DecemberDecision"). 1 Plaintiffalso seeks, in Motion Seq. No. 008, leave to conductdiscovery to oppose those branches ofdefendants' motions to dismiss (Motion Seq. Nos. 003 and 004) that had been held in abeyance pending the Court ofAppeals' consideration ofNew York's AntiSLAPP Law, and to deny those motions to dismiss. Forthe reasons set forth below, plaintiffsmotion for discovery is denied, plaintiffs 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 ofdefendants' reasonable attorney's fees and costs.2
BackgroundandPreviousProceedings 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 offive women that plaintiff

1The Appellate Division, FirstDepartment affirmed the DecemberDecision in a May 30, 2023, decision published at 216 A.D.3d 594. The Court also declined to vacate the December Decision in a decision dated June 27 2023 and published at 2023 N.Y. Misc. LEXIS 3365. ' ' 2 In considering Motion Seq. Nos. 007 and 008 (and through them, the remaining branches ofMotion Seq. Nos

. 003 and 00~), the C~urt read all ofthe papers respectively filed in those motion sequence numbers in NYSCEF, and the parties are d!fected to NYSCEF for that information pursuantto CPLR2219. Because ofthe sheer volume ofpapers, the Court has not listed them all here. To the extent any party wishes a separate list delineated by NYSCEF document number, they may settle an order doing so on notice

.

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

1 o f 14 Page 1 of 14



### [* 1]NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

had "for years perpetuated a toxic culture of sexual harassment.

..routinely subjecting young female assistants to pornography in the workplace, lewdjokes, 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, Ex. A., at 1). Plaintiff and his colleagues conceded during defendant Garde's interview ofthem 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, Ex. A., at 2; and Interview Transcriptfiled NYSCEF Doc. No. 16, at 19). In a final commentto defendant Garde priorto publication,
one ofplaintiffs colleagues stated that "[i]fthis article proceeds I hope that you will be fair and focus on the person responsible, not the entire firm." (Amended Complaint, Ex. A., at 2). On December 5, 2017, the article published underthe headline "[b]iotechhedge fund titan Sam Isaly harassed, demeaned women for years, former employees say." (Amended Complaint, Ex. A, at 1). Plaintiffsubsequently commenced a series ofactions litigatedin state andfederal 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 ofplaintiffwilling to speak with Garde onthe record. See, Jsaly v. Boston Globe Media Partners, LLC, Dkt. No. 23-67-cv, 2023 U.S. App. LEXIS 26124, *2-4 (2d Cir. Oct. 3, 2023) (affirming dismissal offederal action and discussing case history in state and federal courts). 3 The Court initially dismissed this action by decision and order dated July 11, 2022, and published at 2022 NY Slip Op 32203(U), about whichplaintiffsoughtleave to reargue, which the Court granted in partby the Court's December 6th decision to the extent ofholding defendants' Anti-SLAPP motions and aportionofdefendant Burke'smotionto dismiss in abeyancependingthe Court ofAppeals' action in Gottwald v. Sebert. 40 N.Y.3d 240 (2023). The First Department affirmed the December Decision (as noted previously), and denied plaintiffleave to reargue or appeal by decision and order dated September 7, 2023, and published at 2023 NY Slip Op 72896(U). Plaintiffthen sought leave to appeal from the Court ofAppeals, which the Court ofAppeals denied by decision and order dated January 16, 2024, and published at 2024 NY Slip Op 60632.

3 This is the first of three actions plaintiff commenced before the Court. Subsequent to this action, plaintiff commenced_lsalyv. Boston GlobeMediaPartners, LLCunderNewYork CountyIndexNo. 151825/2022onMarch 3, 2022 (wh1c_h was removed to federal court as noted by the Court's June 13, 2022, order in that action), andfsaly v. Garde (agamst defendant Garde alone) underNew York County Index No. 161333/2023 on November20, 2023.

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

2 of 14 Page 2 of 14



### [* 2]

### I ·.·"'-·· ---,,~,~,,~- NYSCEF DOC, NO, 200 INDEX NO, 160699/2018 RECEIVED NYSCEF: 02/14/2024

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 Law. The Court addresses the parties' arguments in tum.
TheAnti-SLAPPLawasAmendedby Chapter250Appliesto the Continuation ofthisAction Plaintiff incorrectly asserts that the First Department's holding in Gottwald, which held that Chapter 250 did not apply to actions (like this one) commenced prior to its enactment, remains in force following the Court ofAppeals' decision reviewing it. While the Court ofAppeals 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 ofGottwald's suit beyond the effective date ofthe amendments entitles Sebert to recover damages," provided that defendant could establish an anti-SLAPP claim. Gottwald, at *259. It is, as the Court ofAppeals held in Gottwald, the continuation ofthis 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. June Decision, at *13. "Plaintiffs theory

...is like the rabbit hole ofAlice 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 that are not only flatly contradicted by the plain text ofdecisions but have been expressly considered and rejected in this action. Brivikv. Murray, Dkt. No. ll-cv-2101, 2014 U.S. Dist. LEXIS 26784, *10 (M.D. Fla. Mar. 3, 2014). See also, D'Lil v. Best Western Encina Lodge & Suites, Dkt. No. cv 02-9506, 2010 U.S. Dist. LEXIS 163123, *31 (C.D. Cal. Apr. 13,2010)(notingCourt'sconcernthatplaintiffsrepetitionofrejected arguments "wasnotthe first time [plaintiffscounsel] hadraiseduntenable arguments, wastingthe Court's time and Defendants' money"). In re-casting his applicability argument in the instant motion, plaintiffrelies upon the Appellate Division, Second Department'srecentholding in VIP Pet GroomingStudio, Inc. v. Sproule, 2024 NY Slip Op 00205 (2d Dept. Jan. 17, 2024), which held that a plaintiffs complaint filed days before Chapter 250 took effect (and in which no subsequent action had been taken) was not subject to Chapter250. 4 VIP Pet Grooming Studio, at *4-5. See also, Burton v. Porcelain, 2024 NY Slip Op 00291 (2d Dept. Jan. 24, 2024) (citing VIP Pet Grooming Studio in finding that Chapter 250 did not apply in motion to dismiss

4See, Jan. 22, 2024, email from Alan Lewis to Brian Krist.

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

3 of 14 Page 3 of 14 

# j [* 3]

### I NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

pending at the time ofits enactment). Although plaintiffargues that VIP Pet Grooming Studio controls, plaintiff is incorrect. This action is immediately distinguishable in the sheer scale ofplaintiffs postenactmentlitigation activity, andthe CourtofAppealshas statedthat "[t]here is no retroactive effect when theseprovisions are applied, accordingto theirterms, to the continuationofthe actionbeyondthe effective date ofthe amendments." Gottwald, at 258. This particularly includes plaintiffs August 2022 effort to, again, amend his complaint in Motion Seq. No. 005, long after Chapter 250 took effect. Plaintiffis essentially inviting the Court to disregard the Legislature and the Court ofAppeals because plaintiffdisagrees 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 ofthe legislature
or the Appellate Courts." Luongo v. Records Access Officer, 150 A.D.3d 13, 26 (1st Dept. 2017); and People v. Alvarez-Hernandez, 2002 NY Slip Op 50493(U), *5 (Westchester Co. Ct. 2002). The Court is "not free to disagree, to disregard in the guise ofreinterpretation, or to speculate upon probabilities or personalities," and "must follow the decisions and interpretations of our highest court in spite of any individual predilections," plaintiffmay have. UnitedStates v. Swift & Co., 189 F. Supp. 885, 901 (N.D. Ill. 1960). The Legislature and the Court ofAppeals have spoken clearly that Chapter 250 applies to the continued litigation ofexisting cases after its enactment, and the Courtwill heed them.
Plaintifrs Constitutional Obiections toAnti-SLAPPLegislation areMisplaced Plaintiff asserts that the Anti-SLAPP Law, as amended by Chapter 250, violates his state and federal constitutional rights ofpetition andjury trial. Once again, plaintiffis wrong. "[I]n amending its anti-SLAPP lawto set a higher standard offault for defamation claims involving private individuals

...the NewYork legislature soughtto protect an important substantive interest: the exercise offree speech about matters of public concern." Shannon Jankowski, SLAPP-ing Back: Recent Legal Challenges to the Application of State Anti-SLAPP Laws, American Bar Association (Mar. 16, 2022), at *8. "The news media-and those who share their stories with the news media-have faced an onslaught ofretaliatory and meritless litigation in recent years," which is a pernicious harm thatNew York may, and has, sought to curb without offending the state or federal constitutions. Jankowski, at *9 Federally, the Framersrecognizedthe ideathat while "theerroneous statementoffact is not worthy ofconstitutional protection, it is nevertheless inevitable in free debate." Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (citing James Madison's Report on the Virginia Resolutions of1798). While the Supreme Court noted that "the individual's right to the protection ofhis own good name reflects no more

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

4 of 14 Page 4 of 14



### [* 4]

### I NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

than our basic concept ofthe essential dignity and worth ofevery human being

-- a concept at the root of any decent system ofordered liberty,"

-- the Court has also "been especially anxious to assure to the freedoms ofspeech and press that 'breathing space' essential to their fruitful exercise," and "(t]o that end this Courthas extended a measure ofstrategic protectionto defamatory falsehood." Gertz, at 342. 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 plaintiffs desire for heartbalm. Gertz, at 342. Put simply, and recently, "[t]he First Amendment, we have concluded, requires that we protect some falsehood in order to protect speech that matters." Counterman v. Colorado, 143 S. Ct. 2106, 2115 (2023) (discussing Gertz). Plaintiffs reliance on decisions from Washington, Minnesota, New Hampshire, and Maine is misplaced. The Supreme Court ofWashington premised itsjury trial concerns about Washington's antiSLAPP law entirely uponthe Washington Constitution and, while finding thatWashington's anti-SLAPP law interfered with plaintiffs' federal First Amendment rights, the Court simultaneously noted that "[f]rivolous suits (i.e., those that lack a 'reasonable basis,' are 'based on insubstantial claims,' or are

11baseless') are not within the scope ofa First Amendment protection." Davis v. Cox, 183 Wn. 2d 269, 290 (2015). In Leiendecker v. Asian Women United of Minnesota, the Minnesota Supreme Court based its holding striking downMinnesota's anti-SLAPP law entirely upon the Minnesota Constitution, without reference to the federal constitutionat all. 895 N.W.2d 623, 634-635 (Minn. 2017). TheNew Hampshire Supreme Court similarly relied upon state, not federal, constitutional provisions in an exparte advisory opinion to the New Hampshire Senate against a proposed anti-SLAPP bill. See, Opinion of the Justices (SLAPP Suit Procedure), 138 N.H. 445, 446-447 (1994). Although the Maine Supreme Judicial Court noted Seventh and FourteenthAmendmentconcerns 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 (2021).Plaintiffs cherry-picking ofprecedent also failed to disclose that constitutional arguments against anti-SLAPP legislation have failed elsewhere. 5 See, Bernardo v. Planned Parenthood Federation of America, 115 Cal. App. 4th 322, 360-361 (Cal. Ct. App, 4th Dist.), cert. denied, 2004 Cal. LEXIS 3097 (Cal.), cert denied, 543 U.S. 942 (2004) (finding that anti-SLAPP laws did not violate plaintiffs First

5 Pl~intiffhas burden~~ the Ciurtthroug~ such ~ac~ics befor~, an~ been cautioned in this action against doing so prev10usly. June Decision, at 10 n. 7 (notmgplamtiffs selective disclosure ofprecedentand notingthat "the Court expects greater care from counsel when advancing arguments in the future").

160699/2018 ISAL Y, SAMUEL 0. vs. GARDE, DAMIAN Motion No. 007 008

5 of 14 Page 5 of 14



### [* 5]NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

Amendment rights); and Klem v. Access Ins. Co., 17 Cal. App. 5th 595, 608 n. 6 (Cal. Ct. App., 4th Dist. 2017), de publication denied, 2018 Cal. LEXIS 1729 (2018) (collecting authorities and holding that "AntiSLAPP is no impediment to redress ofgrievances orjury trial rights"). The Supreme Court ofNevada expressly cited and distinguished Leiendecker and Davis in upholding Nevada's anti-SLAPP law. See, Taylor v. Colon, 136 Nev. Adv. Rep. 50, *10-11 (2020). The District ofColumbia Court ofAppeals, while limiting certain anti-SLAPP procedures on home rule grounds, rejected plaintiffs constitutional arguments when presented with them. See, Morgan Banks v. Hoffman, Dkt No. 20-cv-0318, 2023 D.C. App. LEXIS 258, *34-37 (D.C. Sept. 7, 2023) (discussing constitutional objections to local anti-SLAPP law and finding that "[w]e need not pause long overthese claims"). In addressing burden-enhancement and shifting in anti-SLAPP regulation, the Morgan Banks Court explained: We cannot agree that the Act's burden-shifting prov1s1on infringes on appellants' constitutional right to petition. The Supreme Court has explained that the right ofaccess to the courts is ancillary to the underlying claim, without which a plaintiffcannot have suffered injury by being shut out of court. The burden-shifting provision imposes on SLAPP plaintiffsthe burden ofshowing thatthe complaintrests on more thanunsupported 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 ofevidence and permissible inferences by thejury. A plaintiffwho is shut out ofcourt because it cannot meet that burden has not been denied its constitutional right to petition the courts. Morgan Banks, at *35-36 (quotations and citations omitted). Whilenot specifically addressing this State'sorthe federal constitution, the Court ofAppeals 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*1(quotations and citations omitted). As the Court previously discussed in the December Decision, "[t]he Court ofAppeals has noted and affirmed the expansive language ofour State constitutional guarantee ofa free press and the consistent tradition in this State ofproviding the broadest possible protection to the sensitive role ofgathering and disseminating news ofpublic events," and that "we value speech and public participation knowing that the power may be misused, aware that the advocacy ofsome may be injurious or false, refusing to judge in individual cases whether debate itself would be good orbad." December Decision, at *5-6 (citations and quotations omitted). That New York has chosen to protect more speech under its state constitution and statutory lawthan might be required by the federal constitution is within New York's sovereign discretion, and "[a]bsent a debilitating

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

6 of 14 Page 6 of 14



### [* 6]NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

constitutional flaw inthe Act, this Courtmust effectuate the commonwill expressed in the purpose ofthe legislation." Swails v. State, 263 Ga. 276, 276 (1993). Accordingly, the Court finds that Chapter 250 is permissible underboth the state and federal constitutions.
DefendantsMaySeekAttorney'sFees byMotion Pursuantto theAnti-SLAPPLaw Procedurally, plaintiffalso objects to awarding fees and costs as part ofan order dismissing this action, instead arguing that defendants cannot recover fees and costs without asserting their demand by answering the pleadings inthis action with a counterclaim or filing a new action. (Mem ofLaw in Supp., at 6). Plaintiffrelies upon a number ofdecisions from coordinate state and federal courts, and appellate decisions predating Chapter 250. Plaintiff'sposition is unavailing. Pursuant to Civil Rights Law§ 70-a(l)(a):

[C]osts and attorney's fees shall be recovered upon a demonstration, including an adjudicationpursuant to [CPLR 32Jl(g)].

..that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and couldnotbe supportedby a substantial argument for the extension, modificationorreversal ofexisting law. (emphasis added).
In contrast, "other compensatory damages may only be recovered upon an additional demonstration thatthe actioninvolvingpublic petition andparticipationwas commenced or continued for the purpose ofharassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or associationrights," and "punitive damages mayonly be recovered upon an additional demonstration that the action involving public petition and participationwas commencedor continued for the sole purpose ofharassing, intimidating, punishing or otherwisemaliciously inhibitingthe free exercise ofspeech, petition or association rights." Civil Rights Law 

### § 70-a(l)(b) and (c). 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 SLAPP's require progressively higher levels of intent and motive that are more conducive to pleadings and litigation independent ofthe underlying CPLR 321 l(g) motion to dismiss. 6

6 T~ ~e clear, nothing in this de~i~ion_should be read as decidingthat claims for non-cost-and-fee compensatory or pumttve damages pursuant to CIVIi Rights Law § 70-a(l) cannot be awarded through motion practice, as that issue ts not before the Court.

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

7 of 14 Page 7 of 14



### [* 7]

### I NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

Indeed

- and troublingly contrary to plaintiffs argument

- the First Departmenthas addressed this issue inreinstating a motion for fees and costs inAristocratPlastic Surgery P. C. v. Silva, 206 A.D.3d 26, 29 (1st Dept. 2022). 7 There, as here, a defendant sought attorney's fees and costs as part of a CPLR 321 l(g) motion, whichwas denied. While the gravamen ofthe First Department's decision inAristocrat 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 ofwhether fees and costs could be soughtby motionratherthan acounterclaimorstandalonepleading was posedby theparties and answered by the First Department. And the answer was yes. That the answer was short does not diminish its substance, as the FirstDepartmenthas "broaddiscretion in determiningthe level ofdetail thatitprovides," and "some issues and actions may require a greater level ofdetail than others, and discerning which case calls for aheightened level ofdetail is partofthe subjective art of judging." Charalabidis v. Elnagar, 188 A.D.3d44, 49 (2d Dept. 2020), citing, NYCTL 2012-A Trust v. 1698Lex Corp., 169 A.D.3d 577 (1stDept. 2019). That point is further illustrated by the First Department having affirmed the very practice contemplated, citing itselfin Aristocrat Plastic Surgery, nearly a year ago. See, Golan v. Daily News, L.P., 214 A.D.3d 558, 559 (1st Dept. 2023). Plaintiffs problem is not that the First Department has not considered plaintiffsmotionversus claim argument, butthatthe Appellate Divisionhas considered it and does not agree withhim. 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 Chapter250, the Courtnotes 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 ofthe 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 ofthe Anti7As plaintiffexpressly referenced (in his sur-reply, at 7) the substance ofthe briefing inAristocratPlastic Surgery, the Court took notice ofthe briefs. While plaintiffasserts that "the argument was raised perfunctorily and at the end ofa long brief," this precise issue was one ofAristocrat Plastic Surgery's two counter-questions presented on appeal, and the subject ofan entire point (Point 2 of3, which the Court also notes is the middle ratherthan the end) in its opposition brief. That briefitselfis available on NYSCEF, and published on Westlaw at 2022 WL I 125935. T~e defendan! inAristocratPlastic Surgery replied to that argument with its own point (Point 2 of4) in their reply bnef, consummg over 4pages ofan II-page reply, itselfalso available on NYSCEF. That is flatly not perfunctory.

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

8 of 14 Page 8 of 14



### [* 8]

### I NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

SLAPP Law, and post-hoc coordinate decisions to the contrary are unpersuasive. 8 See, Sponsor's Mem. ofSen. Hoylman-Sigal, Bill Jacket, Chapter 250, at 1; and Aristocrat Plastic Surgery, at 29 (citing the sponsoring memorandum in support ofChapter 250 and the "narrow interpretation by the courts" ofthe Anti-SLAPP Lawprior 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 plaintiffs argument. See, People v. Vespucci, 144 A.D.2d 48, 55 (2d Dept. 1988), affd, 74 N.Y.2d 434, cert. denied, sub nom. Corrigan v. New York, 498 U.S. 814 (1990) (director of the Organized Crime Task Force could apply for eavesdropping warrants because "literal construction" ofa 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") (internal quotations and citations omitted); Turner v. Dept. ofFinance, 242 A.D.2d 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 ofthe text "should not be adhered to or suffered to defeat the general purpose and manifest policy intended to be promoted") (citation omitted); and King v. Burwell, 576 U.S. 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 Services v. Dublino, 413 U.S. 405, 419-20 (1973). Plaintiffs suggestion that the Legislature intended for those it intended to protect through an enhanced anti-SLAPP pre-answermotionto dismiss by requiring those samepeople to forgo the very preanswer motion practice the Legislature expressly crafted for them in order to recover the enhanced penalties specifically designed 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 PlasticSurgery argued as much to the First Department, in stating that "Appellants did not file an answer denying the allegations ofthe Complaint and asserting a counterclaim for alleged damages," as "[s]uch a course ofconductwouldhave causedAppellantsto engage inneedless and expensive discovery-thevery harm that the anti-SLAPP statutes are intended to eliminate." Reply Brieffor Respondents, Aristocrat PlasticSurgery, at 6.

8 See, Chin~~e Am. Civ. Right~ Coal. ~- Trump, 21-cv-4548, 2022 N.Y. Misc. LEXIS 82562, *15 (S.D.N.Y. May 4, 2022) (c1tmg federal cases m denymg motion for anti-SLAPP attorney's fees); and 315 W. 103 Enters. LLC v. Robbins, 171 A.D.3d 466 (Ist Dept. 2019).

160~99/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

9 of 14 Page 9 of 14



### [* 9]

### I NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

Plaintiffs reliance on federal cases denying fee applications by motion in favor of requiring defendants to pursue separate claims is particularly misplaced because ofconflicting federal decisions regardingthe applicability ofstate anti-SLAPP laws claimsheardinfederal courtby diversityjurisdiction. See, Jankowski, supra. That the Legislature established a separate cause of action for anti-SLAPP remedies merely reflects the commonwill ofNew Yorkthat 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 ofthe Legislature precludes awarding fees by motion rather than a pled claim. For proceedings in state court, to the extent the First Department has not already resolved this question inAristocratPlastic Surgery or Golan, plaintiffs argument remains unavailing.
Plaintiff HasNotEstablished GoodCause to ConductAnti-SLAPPDiscovery Pursuant to CPLR 321 l(g)(3) (emphasis added), "[t]he court, on noticed motion and upon a showing by the nonmoving party, by affidavit or declaration under penalty ofperjury that, for specified reasons, it cannotpresentfacts essential tojustify its opposition, may order that specified discovery be conducted," that "shall be limited to the issues raised inthe motionto dismiss." Plaintiffhas not metthis burden.

### In seeking discovery from defendant Burke, plaintiffrelies solely onhis attorney's affirmation as the basis ofhis purported necessity. That is deficient. The person in the best position to state what information plaintiffhas concerning communications between plaintiffand defendant Burke is plaintiff himself, yet plaintiffhas not offered an affidavit detailing his own personal knowledge in the instant motion. That alone is largely fatal to plaintiffs motion for discovery. See, People v. Trump, Index No. 452564/2022, 2023 N.Y. Misc. LEXIS 12067, *40 (Sup. Ct., New York Co. Oct. 30, 2023), interim stay denied, Case No. 2023-5460, slip op., at 1(1st Dept. Nov. 2, 2023) (Mendez, J. in chambers) (noting lack ofaffidavit upon personal knowledge in denying motion to quash subpoena). Further, plaintiffdoes not offer an affidavit from anyone asserting that they conducted a search ofmaterials underplaintiffscontrol regarding communications between plaintiffand defendant Burke at all. Indeed, arecent FirstDepartment decisionplaintiffcited for a differentpointin his memoranda of law illustrates the issue: Carey v. Carey, 220 A.D.3d 477 (1st Dept. 2023). In words that might as well have been written at the outset for the instant motion:

160699/2018 ISALY, SAMUEL D. vs. GARDE DAMIAN Motion No. 007 008 ' Page 10 of 14

10 of 14 

### [* 10]

### I NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

The court's denial ofhis CPLR 321 l(g)(3) discovery motion was a provident exercise of its discretion. Plaintiffcites 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 ofthe statements potentially defamatory, or because ofthe enormous burden the anti-SLAPP amendments place on defamation plaintiffs. CPLR 321 l(g)(3) allows for discovery in connection with a motion to dismiss only if, for specified reasons, the nonmovant states, 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 ofdiscovery otherwise effected by CPLR 3211(g). His statements that facts relevant to actual malice are, as a general matter, typically in the sole possession ofa...defendant, fall short. Carey, at 478-479 (internal quotation marks omitted). In the absence ofany proof, the Court cannot simply assume that discovery must be necessary to defeat an anti-SLAPP motion. Accordingly, the Court will deny plaintiffs motion for CPLR 321 l(g)(3) discovery from defendant Burke.
Plaintiff Has NotEstablisheda SubstantialBasis in FactandLawto Continue ThisAction In opposing a motion to dismiss pursuant to CPLR 3211(g), plaintiffmust demonstrate "that the
cause ofaction has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal ofexisting law." Plaintiffhas not done so. Plaintiffs arguments that Chapter 250 does not apply to this action because it was commenced prior to the effective date ofChapter 250 do not offer a substantial basis in law as contemplated by the statutefollowing the CourtofAppeals' holdingin Gottwaldand the FirstDepartment'sholdings affirming the Court in this action and denying reargument orleave to appeal (about whichthe Court ofAppeals also denied leave). For the same reasons, plaintiff's arguments do not offer a substantial argument to extend, modify, orreverse existing law. Turning to the facts, plaintiffs argument is, at its essence, that defendant Burke told defendant Garde false stories ofsexually harassing acts by plaintiff, and that Garde published them in an article. Plaintiffoffered nothing in support ofthis in his unverified pleadings, and has continued to offer nothing (either by his word orthrough supporting statements or documents) in supportthrough the course ofthree years ofprotractedmotionpractice in Motion Seq. Nos. 004 through 008. Plaintiff'sunadorned assertions amount to nothing more than the very type of bare notice pleadings that Chapter 250 is specifically designed to foreclose. In considering the standard plaintiffmust meet to survive defendants' motion to dismiss, the Court notes that the Second Circuit has affirmed dismissal of plaintiff's allegations in

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

11 of 14 Page 11 of 14



### [* 11]INDEX NO. 160699/2018. NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 02/14/2024

plaintiff'sparallel litigation against Garde'spublisherbasedonthefederal plausibility standard, "rejecting Isaly's main argument that he was physically incapable oftaking the actions attributedto him inthe article

- primarily, sending inappropriate emails

- because he is quadriplegic and has limited use ofhis arms and fingers." Jsaly v. Boston Globe Media Partners, LLC, 2023 U.S. App. LEXIS, at *2-3, quoting, Isaly
v. Boston Globe Media Partners, LLC, Dkt. No. 21-1330-cv, 2022 U.S. App. LEXIS 1006, *1 (2d Cir. Jan. 13, 2022) (internal quotationmarks omitted). As the Courtfound, and the FirstDepartment affirmed, plaintiff's claims against Garde failed even under the pre-Chapter 250 pleading standard. As plaintiff's claims are not evenplausible, they cannot be substantial. Instead, the continuation ofthis action after the Legislature's enactment ofChapter 250 has been
a veritable archetype ofthe strategic litigation againstpublic participation that the Legislature intended to curb in reforming the Anti-SLAPP Law. After the enactment ofChapter 250, plaintiffhas noticed four motions before the Court (Motion Seq. Nos. 005 through 008) and vigorously litigated motions and crossmotions intwo others (Motion Seq. Nos. 003 and 004), soughtto amend his complaint again, noticed two appeals to the First Department, sought reargument from the First Department when he did not prevail there, andthen sought leave from the CourtofAppeals. Thatplaintiffhas pursuedthis course oflitigation
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 ofa 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." Gordon v. Marrone, 155 Misc. 2d 726, 736 (Sup. Ct., Westchester Co. 1992). Plaintiffhas not met his burden in opposing defendants' motions, and the Court accordingly finds that plaintiff's claims lack a substantial basis pursuant to CPLR 321 l(g).

The Court Will ConductaHearingRegardingDefendants'DemandsforAttorney'sFees "It is well established that courts have broad discretion in determining an award ofattorney fees and costs," and that "New York courts often use the lodestar method, which is based on a reasonable hourly rate times a reasonable number ofhours expended." New York Times Co. v. New York Office of the Mayor, 2023 NY Slip Op 32941(0), *3 (Sup. Ct., New York Co. 2023) (citations omitted).9 Courts

9 The lodestarmethod is based upon a 12-factortest considering: (I)the time and laborrequired; (2) the novelty and difficulty ofthe questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion ofemployment by the attorney due to

160699/2018 ISALY, SAMUEL 0. vs. GARDE DAMIAN Motion No. 007 008 ' Page 12 of 14

12 of 14 

### [* 12]

### I ~,.-~=~·~""·· INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024


# I

NYSCEF DOC. NO. 200

applying the lodestar method have varied in considering fee applications on papers alone or through evidentiary hearings. Compare, e.g., JO v. New York City Dept. of Educ., Dkt. No. 20-cv-5061, 2021 U.S. Dist. LEXIS 122346, *1 (S.D.N.Y Jun. 29, 2021) (determining reasonable attorney's fees in IDEA litigation after trial); and Matter of Infinity Q DiversifiedAlphaFundSecurities Litig., 2023 NY Slip Op 34527(U), *19 (declining to grant attorney's fees without hearing); with, R.S. v. New York City Dept. of Educ., Dkt. No. 21-cv-2257, 2023 U.S. Dist. LEXIS 176654, *1 (S.D.N.Y. Sept. 29, 2023) (determining reasonable attorney's fees in IDEA litigation on papers); and New York Times Co., at* 1. (determining fees in FOIL litigation on papers). Ifanything, New York courts have generally favored hearings rather thanpapers in determining fees, especially where there is sharp disagreement atthe fore or onthe horizon. See, e.g., Matter of Infinity Q DiversifiedAlpha FundSecurities Litig., supra., citing, Sheridan v. Police Pension Fund, 76 A.D.2d 800, 801-802 (1st Dept. 1980). Baseduponthe litigation ofthis actionthus far, Matter of Infinity Q DiversifiedAlphaFundSecurities Litig. is particularly instructive, and the Court will conduct a hearing to calculate reasonable attorney's fees and costs.

Conclusion The Courtdoes notminimizeplaintiff'sincandescent disagreementwith defendants' statements in the article. However, the commonwill ofthis State has considered and acceptedthatplaintiff'sill-feeling is an accepted consequence to preserving the marketplace ofideas. Plaintiff's path to relieffrom that policy decisionruns through the Legislature in Albany, not a courthouse in NewYork City. Thus, he has not stated a claim for which reliefcan be granted and, given the nature ofplaintiff's dismissed claims, defendants may now recover their costs and attorneys' fees due to plaintiff's continued litigation ofthis action. Accordingly, it is hereby, ORDERED thatplaintiffsmotion for discovery (Motion Seq. No. 008) is denied; and itis further ORDERED that plaintiff'smotionto lift or vacate the stay in this action (Motion Seq. No. 007) is granted to the extent set forth below; and it is further

acceptance ofthe 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 ofthe attorney; (10) the "undesirability" ofthe c~s~; (11) the nature and length ofthe professional relationship with the client; and (12) awards in s1mtlar cases. New York Times Co., supra. (citations omitted). 160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

13 of 14 Page 13 of 14


### [* 13]

### I NYSCEF DOC. NO. 200 INDEX NO. 160699/2018 RECEIVED NYSCEF: 02/14/2024

ORDERED thatthe branches ofdefendant Damian Garde's motionto dismiss this actionpursuant to CPLR 3211(g) as part ofMotion 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 ofthis decisionto schedule a fees hearing. This constitutes the Decision and Order ofthe Court.

2/14/2024

DATE CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

160699/2018 ISALY, SAMUEL D. vs. GARDE, DAMIAN Motion No. 007 008

14 of 14 James d'Auguste, J.s.c: NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 

# 0 OTHER**□** REFERENCE

Page 14 of 14



### [* 14]