Civil Court of the City of New York, New York County, May 21, 2024

Thomas Rukaj, New York City, defendant pro se.

Following oral argument and hearing, defendant's motion to dismiss the claim in this action and recover pursuant to Laws of 2020, chapter 250, is granted without written opposition to the extent of dismissing the action and scheduling an inquest on the issue of defendant's damages against plaintiff as set forth below.

Claimant, a licensed dentist, commenced this small claims action on March 27, 2024, seeking $5,000 for alleged personal injury. (Statement of claim at 1.) Defendant served and filed this motion, dated April 10, 2024. Defendant also served and filed a counterclaim for relief pursuant to Civil Rights Law § 70-a. Claimant did not offer written opposition despite prior notice of the motion. Instead, claimant dispatched his brother to appear on his behalf by written power of attorney pursuant to CCA 1815, who was not ready to proceed to trial as scheduled (thereby defaulting on the counterclaim). After giving both{**84 Misc 3d at 807} sides an opportunity to be heard, the court took defendant's motion on submission.

Anti-SLAPP is an exception to the general rule against pretrial motions in small claims.

The court has previously noted that a "defendant's burden in seeking dismissal on a motion to dismiss a self-represented claimant's small claim is very high." (Fishman v Allstate Ins. Co., 2022 NY Misc LEXIS 6855, *2 [Civ Ct, Bronx County, July 8, 2022, index No. SC-300-21/BX] [collecting cases].) Ordinarily, "[t]he informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice under the CPLR prior to the hearing of their case," and "[s]ubstantial justice . . . will best be rendered by a prompt trial, where defendant can assert its substantive arguments for dismissal" (Polanco v City of New York, 81 Misc 3d 138[A], 2023 NY Slip Op 51431[U], *1 [App Term, 1st Dept 2023] [reversing pretrial dismissal of small claim on motion] [internal quotation marks omitted]). As defendant correctly notes however, "the court should entertain motion practice if it presents a clear issue of law." (Loakman v Transport Workers Union of Greater N.Y., AFL-CIO, Local 100, 11 Misc 3d 936, 938 [Civ Ct, NY County 2006] [internal quotation marks omitted];[*2] see also Carratu v Aromando, Civ Ct, Bronx County, Apr. 26, 2022, Zellan, J., index No. SC-1053-21/BX, slip op at 1 [dismissing small claim brought against City inspector personally to challenge administrative summons].) The court is also expressly required to grant calendar preference to motions to dismiss alleged SLAPPs (strategic lawsuits against public participation). (See CPLR 3211 [g] [1].) Upon the record before the court, this claim is one of those few exceptions contemplated by Loakman and Carratu where motion practice is appropriate.

"Courts and academics have recognized the particular risks of potential SLAPP actions for years . . . as a lawsuit no doubt may be used as a powerful instrument of coercion or retaliation." (Isaly v Garde, 2023 NY Slip Op 34631[U], *15 [Sup Ct, NY County 2023] [internal quotation marks, brackets and citations omitted].) Because of their corrosive effect on public discourse, courts have said bluntly that "[s]hort of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." (Matter of Gordon v Marrone, 155 Misc 2d 726, 736 [Sup Ct, Westchester County 1992].) The Board of Regents (which oversees the practice of dentistry in New York){**84 Misc 3d at 808} has also considered the deleterious effect of licensed dentists harassing or intimidating patients, including "willfully harassing, abusing or intimidating a patient either physically or verbally" as grounds for professional discipline. (8 NYCRR 29.2 [a] [2].) SLAPP issues are uncommon in the Small Claims Part in the court's experience, and while it may be that "the procedural context of the litigation at bar . . . is unprecedented for a SLAPP suit . . . that uniqueness does not obviate its utility as a SLAPP." (Gordon at 736.)

Although, following Polanco and Fishman, the remedy to most pretrial motion practice in small claims actions is typically to schedule a prompt trial, and "[t]he underpinning legislative [anti-SLAPP] framework was crafted with promptness in mind," the clear legislative intent behind chapter 250 does not favor the ordinary course of essentially holding pretrial motions in abeyance pending trial given that the very purpose of anti-SLAPP laws is to reduce trials of SLAPPs. (Isaly v Garde, 2024 NY Misc LEXIS 1621, *1 [Sup Ct, NY County, Apr. 8, 2024, index No. 160699/2018].) The societal interest in deterring and halting SLAPPs at the earliest is, as reflected in express statutory language and supporting legislative materials, compelling. (See CPLR 3211 [g] [1]; Isaly v Garde, 2023 NY Slip Op 34631[U], *17 [Sup Ct, NY County 2023] [citing sponsoring and amicus memoranda of Senator Hoylman-Sigal in discussing legislative intent in regulating SLAPPs].) Especially as chapter 250 was enacted to specifically establish anti-SLAPP protections in substantive—not merely procedural—New York law, anti-SLAPP provisions have force and effect in the Small Claims Part notwithstanding the "[i]nformal and simplified procedure on small claims" established by CCA 1804. (See Isaly v Garde, 2024 NY Slip Op 30877[U], *10 [Sup Ct, NY County, Mar. 18, 2024].) Accordingly, the court will not simply deny defendant's motion without prejudice to seeking relief through trial.

The claim is a SLAPP subject to dismissal pursuant to chapter 250.

At the outset, the alleged defamatory statement is fatally deficient as a matter of law irrespective of chapter 250. Defendant posted an online review of claimant's dental practice on Google Reviews that "[t]his place is highly disorganized and unsanitary." (Aff in support, exhibit A.) That is an expression of opinion, and "expressions of opinion are not a basis for a claim regardless of the pleading standard." (Isaly v Garde,{**84 Misc 3d at 809} 2022 NY Slip Op 34108[U], *6 [Sup Ct, NY County 2022], affd 216 AD3d 594 [1st Dept 2023].) Thus, claimant did not state a claim even without the anti-SLAPP law pursuant to CPLR 3211 (a) (7).

Pursuant to Civil Rights Law § 76-a, "damages may only be recovered" in a claim [*3]concerning

"any communication in a place open to the public or a public forum in connection with an issue of public interest . . .

"if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue." (Civil Rights Law § 76-a [1] [a] [1]; [2].)

Further, in contrast to ordinary New York practice, a potential SLAPP must be dismissed in response to pretrial motions "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." (CPLR 3211 [g] [1]; 3212 [h].)

It is manifestly apparent from the uncontested record that this claim is the very type of litigation proscribed by chapter 250. The Appellate Division, First Department has expressly held that a "defendant's reviews on internet recommendation platforms of plaintiff physician's treatment were communications made in connection with an issue of public interest," subject to New York's anti-SLAPP protections enacted by chapter 250. (Aristocrat Plastic Surgery P.C. v Silva, 206 AD3d 26, 27 [1st Dept 2022] [internal quotation marks omitted].) There is no reason why the same standard should not apply to the expressions of opinion regarding dental treatment, and the court finds it does so here.

Claimant, by his office manager, sent defendant a cease-and-desist letter threatening legal action "for [defendant's] defamation," which claimant subsequently pursued by this action.^[FN1] (Aff in support, exhibit C.) That claimant styled the claim as{**84 Misc 3d at 810} sounding in personal injury in the statement of claim does not change the inherent character of the instant claim: this is a defamation claim based on a communication in a place open to the public or in a public forum concerning an issue of public interest.^[FN2] As there is no reading of the facts of this case that gives rise to a potentially viable claim by claimant, the court accordingly dismisses claimant's claims against defendant pursuant to CPLR 3211 (g).

The counterclaims are referred for inquest.

Courts may default and refer a party to inquest when, as here, the party appears but is not ready to proceed. (See e.g. Lee v Erdos, Civ Ct, NY County, Aug. 9, 2022, index No. SC-16297-20/NY, slip op at 1; New York Exec. Off. Inc. v Operr Tech., Inc., 2024 NY Misc LEXIS 721, *1 [Civ Ct, NY County, Feb. 16, 2024, index No. CC-60575-19/NY] [defaulting appearing parties and referring them to inquest].) Defendant submitted proof of service of the counterclaims in this action dated April 10, 2024, which the online records of the United States [*4]Postal Service indicate were delivered to claimant on April 13, 2024. (See City of New York v "Doe'', 82 Misc 3d 438, 446 [Civ Ct, Bronx County 2023] [court may take judicial notice of the Postal Service's public-facing tracking information].) Claimant had ample notice of defendant's counterclaims, the substance of which were raised in both a formal pleading and in defendant's motion to dismiss, and chose not to appear ready to proceed in response to them.

Given the relative paucity of precedent in considering the relevant anti-SLAPP claims, and in keeping with the legislative intent for promptness in both chapter 250 and CCA article 18, a promptly-scheduled inquest reflective of both claimant's default and the need for additional information is appropriate. (See e.g. Isaly, 2024 NY Slip Op 30877[U], *13 [ordering hearing on anti-SLAPP remedies], mod denied2024 WL 1973049 {**84 Misc 3d at 811}[Sup Ct, NY County, Apr. 30, 2024] [noting that anti-SLAPP was an area of developing law].)^[FN3] Claimant's ability to appear and participate in the inquest will also provide an opportunity to litigate the scope of monetary relief. (See Lee; New York Exec. Off. Inc.) The inquest will address (1) the scope of attorney's fees sought by defendant pursuant to Civil Rights Law § 70-a (1) (a) following the lodestar method (to the extent defendant is entitled to any attorney's fees as a self-represented litigant in the Small Claims Part, which the court expressly does not decide here); (2) defendant's counterclaim for compensatory damages pursuant to Civil Rights Law § 70-a (1) (b); and (3) defendant's counterclaim for punitive damages pursuant to Civil Rights Law § 70-a (1) (c).^[FN4]

To conserve judicial resources, the inquest will be referred to hear and report with recommendations. (See CPLR 3215 [b]; e.g. New York Exec. Off. Inc.; Isaly v Garde, 2024 NY Misc LEXIS 1218 [Sup Ct, NY County, Mar. 18, 2024, index No. 160699/2018] [referring anti-SLAPP hearing to special master].)

Accordingly, it is ordered that the clerk is directed to amend the caption of this action from Sherwin Benlevi v Thomas Rukaj to Sherwin Benlevi doing business as Manhattan Best Dental Care v Thomas Rukaj; and it is further ordered that the instant motion is granted without written opposition to the extent that claimant's defamation claim styled as a personal injury claim is dismissed in its entirety pursuant to CPLR 3211 (a) (7) and (g); and it is further ordered that defendant's counterclaims for attorney's fees pursuant to Civil Rights Law § 70-a (1) (a), compensatory damages pursuant to Civil Rights{**84 Misc 3d at 812} Law § 70-a (1) (b), and punitive damages pursuant to Civil Rights Law § 70-a (1) (c) are referred upon claimant's default pursuant to CPLR 3215 (b) to hear and report with recommendations; and it is further ordered that the parties shall contact the court by email to [email protected] within 10 days of the date of this order regarding scheduling of the inquest on defendant's counterclaims as directed by this order; and it is further ordered that defendant's motion is otherwise denied.

"(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. v New York Off. of Mayor, 2023 NY Slip Op 32941[U], *3 [Sup Ct, NY County 2023].)