The following documents were read on defendant's motion to dismiss plaintiff's defamation complaint and seeking attorney's fees under Civil Rights Law § 70-a, New York's anti-strategic litigation against public participation ("SLAPP") statute:

Plaintiff, proceeding pro se, commenced this slander/defamation action on September 4, 2024. On October 22, 2024, defendant moved to dismiss and for damages pursuant to Civil Rights Law § 70-a.

The allegations in the complaint are presumed true, including the photocopies of the defendant's alleged statements attached to plaintiff's opposition papers.

Plaintiff is a resident of Montreal, Quebec. The crux of the case is a series of messages on the professional social media site LinkedIn between plaintiff and defendant. Plaintiff allegedly had a lead on a possible acquisition of a New Jersey company. Defendant is in the business of acquiring businesses.

The exchange began on September 14, 2024. Plaintiff reached out to defendant to see if [*2]she bought businesses, to which she replied she did. The two arranged a time to speak over the phone, which they did. During the call, plaintiff explained that the buyer (defendant) would pay his commission for the transaction.

After the call, defendant inquired "You said the buyer is responsible for your commission? That's normally the seller's responsibility, so why would the buyer be paying."

In response, plaintiff explained that he was "working with an investment bank and that they don't pay outside brokers, nor can I get in contact with the seller, that's why all buyers in this transaction have to pay me it s [sic] done in these situations." Defendant then questioned the brokerage and bank with which plaintiff was associated. Defendant further removed plaintiff as a LinkedIn connection and told plaintiff if he wanted to be added as a connection, he would "have to prove you're legitimate." Plaintiff responded that she was inexperienced and unprofessional. Defendant said she believed the situation was "screaming a scam." After some more messaging, the parties cut off their communication.

At some point after this exchange, defendant posted on LinkedIn:

PSA: If you're connected with a "Sebastian Hamelin" he's a scammer getting connections for false legitimacy and attempting to collect payments in exchange for a business financials. The one he tried with me is a NJ door distribution company making $14M in revenues and $2.8M in EBITDA. I would remove him immediately since I saw we had a few same connections.

Defendant now moves to dismiss the complaint because it failed to state a defamation claim, involves only non-actionable opinion, and that defendant's statements are protected by Civil Rights Law § 70-a, entitling her to costs, fees, and damages.

The defendant's motion is granted to the extent that plaintiff's complaint runs afoul of Civil Rights Law § 70-a, the requirements of which plaintiff ignored in his opposition.

Civil Rights Law § 70-a is the Legislative response to the phenomenon of so-called "SLAPP" suits, or strategic litigation against public participation. These "actions are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future" (600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 138, fn.1 [1992]).

Civil Rights Law ("CRL") § 70-a[1][a] provides:

costs and attorney's fees shall be recovered 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;

The Legislature substantially amended the law in 2020 to "broaden the scope of the law and afford greater protections to citizens facing litigation arising from their public petition and participation" (Mable Assets, LLC v Rachmanov, 192 AD3d 998 [2d Dept 2021]; L. 2020, ch. 250). Under the amended law, "public participation" is broadly defined as "any communication in a place open to the public or a public forum in connection with an issue of public interest" or "any other lawful conduct in furtherance of the exercise of the constitutional right of free speech [*3]in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition" (CRL § 76-a(1)(a)(1)-(2)). A "claim" is "any lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief," which would include the defendant's motion (CRL § 76-a(1)(b)). Finally, "public interest" is construed broadly as "any subject other than a purely private matter" (CRL § 76-a(1)(d)). Defendant met the requirements of the amended statute.

Linkedin is clearly a public forum, as "the Legislature intended to include Facebook and other social media platforms within the meaning of public forum" (Nelson v Ardrey, 231 AD3d 179, 184 [2d Dept 2024]). Moreover, defendant's speech was made regarding a matter of public interest, as she was informing the public, in a public post, of her concerns that plaintiff might be perpetrating a scam based on her dealings with him, not a purely private matter (see e.g. Aristocrat Plastic Surgery, P.C. v Silva, 206 AD3d 26, 32 [1st Dept 2022] [holding that online negative review of doctor was a matter of public concern as it provided information to potential patients]).

CRL § 70-a and 76-a apply to this case.

Plaintiff argues that defendant did in fact defame him, that it was not opinion, and was dishonest. He asserts that this is his standard business practice and was not a scam, even though he acknowledges buyside fee agreements were not the standard way for a broker to be paid in mergers and acquisitions. He claims that defendant defamed him when she called him a scammer and denies that he ever asked for any money up front. Plaintiff, however, failed to meet the heightened standard required under CPLR § 3211[g].

CPLR § 3211[g] requires that a motion to dismiss in an "action involving public petition and participation 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." Plaintiff failed to do so. To establish a substantial basis in law, the complaint must be "supported by such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Golby v N & P Engineers & Land Surveyor, PLLC, 185 AD3d 792, 793-94 [2d Dept 2020] [citation omitted]). Further, plaintiff must establish "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" (Mable Assets, LLC v Rachmanov, 192 AD3d 998 [2d Dept 2021] [quoting Civil Rights Law § 76—a[2]]).

The elements of a cause of action to recover damages for defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se (see Levy v. Nissani, 179 AD3d 656, 657—658 [2d Dept 2020; Gugliotta v. Wilson, 168 AD3d 817, 818 [2d Dept 2019]). "Special damages contemplate the loss of something having economic or pecuniary value" (Liberman v. Gelstein, 80 NY2d 429, 434—435 [1992] [internal quotation marks omitted]). A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her or his trade, business, or profession; (3) imputes that the plaintiff has a loathsome disease; or (4) imputes unchastity to a woman (see id. at 435; Levy v. Nissani, 179 AD3d at 658). "When statements fall [*4]within one of these categories, the law presumes that damages will result, and they need not be alleged or proven" (Liberman v. Gelstein, 80 NY2d at 435).

"Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance" (Aronson v Wiersma, 65 NY2d 592, 593 [1985]). "The words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader [or listener], and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained interpretation. "If the contested statements are reasonably susceptible of a defamatory connotation, then 'it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader'" (James v. Gannett Co., 40 NY2d 415, 419 [1975]).

Plaintiff wholly failed to meet his burden to establish his claims have a substantial basis in law or that defendant acted with the required state of mind. It is now abundantly clear in New York that there is a heightened standard to sue people over social media posts. Plaintiff filed this lawsuit in disregard for the laws of this state, which certainly suggests the lack of a "substantial basis in law." But plaintiff's barebones complaint also failed to establish the elements of defamation.

Defendant was concerned about plaintiff's behavior and posted to her business community about it. Even if calling him a scammer was not a statement of opinion, but was intended as a fact, plaintiff failed to establish that she did so with reckless disregard for the truth, i.e. that she had "entertained serious doubts as to the truth of [her] publication" (St. Amant v Thompson, 390 US 727, 731 [1968]). Rather, defendant based her conclusion on a screenshot of the messages she included with the post, suggesting she had no doubts about its truth.

Defendant's motion to dismiss is granted.

CRL § 70-a[1][a] requires an award of attorney's fees and costs in SLAPP suits. As the Court found both that the statute applies and that plaintiff failed to establish a substantial basis in fact or law, defendant is entitled to reasonable attorneys' fees in defending this action.

CRL § 70-a[1][b] allows the Court to award compensatory damages if defendant can establish that the action was "commenced or continued for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights " Defendant failed to establish the plaintiff's intent in bringing this action, and the record contains no support for an award of compensatory or punitive damages. At best, it appears that plaintiff was simply not well versed in the laws of the State of New York as a foreign national proceeding without an attorney.

The Court has reviewed the parties remaining contentions, even if not referenced. All remaining contentions are moot in light of the Court's decision, or do not alter the Court's decision, and are therefore denied to avoid issuing a purely advisory opinion.

Accordingly, it is hereby

ORDERED that defendant's motion to dismiss is GRANTED and the complaint is dismissed in its entirety, with costs and disbursements taxed to the defendants; and it is further

ORDERED that pursuant to Civil Rights Law § 70-a(1)(a) defendant is entitled to reasonable attorney's fees associated with this action; and it is further

ORDERED that defendant shall submit an affirmation in support of their request for [*5]reasonable attorneys' fees within 20 days of entry of this order, with supporting documentation; and it is further

ORDERED that any opposition to the requested attorneys' fees shall be submitted within 10 days of the filing of defendant's application.

The foregoing constitutes the Decision and Order of the Court.