Defendants' motion for leave to reargue pursuant to CPLR 2221 (a) and (d), is GRANTED, and upon due consideration of the matters advanced and advocated in support of defendants' motion to vacate, modify or set aside the Court's Decision dated November 8, 2024 (Dkt. No.296) and the Order granted in furtherance thereof dated May 8, 2025 (Dkt. No. 297), is DENIED. Coterminously, and somewhat mooted, the companion motion for leave to renew pursuant to CPLR Rule 2221 (e) is DENIED.

The legal reasoning and analysis for the Court's denial of any change, revision or other form of altered reconsideration of the aforesaid Decision and Order starts out with a simple and respectful reference to Rule 2221 (d) (2). The Court has examined this matter carefully and does not find any grounds "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion," are present to cause or implicate any change in the prior Decision and Order. Nevertheless, enough has been presented by the defendants in their notice of motion and moving papers to allow reargument of the issue raised and decided in the aforesaid Order (and Decision).

The prior motion was an application based on a counterclaim for an award of statutory costs and attorney's fees to the defendants pursuant to Civil Rights Law Section 70-a, commonly known as the anti-SLAPP (or Strategic Lawsuit Against Public Participation) statute. As of the date of its amendatory effectiveness on November 10, 2020, Section 70-a provides that in an appropriate case, which this one qualifies as based on the prior memorandum opinion of the [*2]Appellate Division, Fourth Department (see 228 AD3d 1266 [2024])^[FN1] , a successful defendant party shall" be entitled to an award of costs and attorney's fees upon the dismissal of a SLAPP lawsuit. After reading, reviewing and listening to the eloquent argument of counsel in Special Term, the Court granted the defendants' application and awarded outstanding costs and attorney's fees in the total sum of $53,855.48.

Defendants believe that the amount awarded was improperly calculated because it represents a reduced net sum due from the full amount of all claimed fees charged throughout the course of the litigation, to wit, $381,875.00, after deducting the amount(s) paid by two insurance carriers totaling $341,123.84. This amount, the sum of $341,123.84, paid by the carriers, relieved the defendants of all expenses for attorney's fees and related litigation costs incurred throughout the course of this action except for a $5,000.00 deductible.^[FN2] Based on that belief and contention, that no offset or reduction whatsoever for the fees paid by the insurance carriers should be included in the total amount awarded, defendants take the position that the Court "misapprehended" the law applicable to this fee award to be made under CRL § 70-a. The Court disagrees and adheres to its original Decision in all respects.

The starting point is the defendants' contention that the amounts paid by the insurance carriers should be disregarded and not factored into the fee award at all. Their position is that the full amount of all legal fees and costs incurred throughout the course of the litigation should be denominated as statutorily chargeable to the plaintiff, regardless of where or from whom those costs and fees were paid. At this point, defendants contend that the amounts paid by the two insurance carriers should be reimbursed in full, either in the form of a recoupment to the carriers or a payment directly to the defendants notwithstanding the fact that they did not pay those amounts themselves.^[FN3]

The problem with defendants' contention in this regard is twofold:

(1) There is no provision in the anti-SLAPP law for the recognition or inclusion of any insurance coverage benefits to be recovered or recouped under the statute. The insurance [*3]carriers were not "defendants" in the action. Indeed, they are in the business of seeking, selling and accepting the risk of potentially being called upon to pay these kinds of expenses, with a full analytical, profit motive driven understanding that "this is the business we've chosen."^[FN4]More pointedly, it is clear from the plain wording of the statute that the costs and attorney's fees that are recoverable thereunder are for the benefit of the party to the lawsuit who actually incurred said expenses (see CRL 70-a (1) , inter alia, "A defendant in an action involving public petition and participation, as defined in paragraph (a) of subdivision one of section seventy-six-a of this article, may maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney's fees "). The analysis of the legislative history leading up to the adoption of Section 70-a, as amended, to make the award of costs and attorney's fees mandatory (the original word "may" was removed and replaced with the word "shall") is set forth below, Point A, infra. Clearly and unequivocally, there is nothing within the body of the statute, nor throughout the extensive legislative formulation history of the law that even remotely references or contemplates the back-ended reimbursement of legal costs and fees paid by those in the global insurance industry who are in the business of selling the opportunity to get premium monies from the public at large, particularly from the media universe, to buy and accept the "risk" of potentially having to incur the expense of defending a lawsuit that may be brought against one of their customer insureds in these cases. The word "insurance" as a payor source intended to be protected is nowhere to be seen or found in the statute or throughout the 34 pages of its Bill Jacket, Point A, infra.

(2) Correspondingly, and inextricably entwined with the above is the further inescapable interpretation of the plain wording of the anti-SLAPP law that it is intended to allow the defendant to recover all the costs and attorney's fees that it has incurred and paid. That's what the statute says in plainly worded script, and the law of New York on a court's interpretation of statutory language has been fundamentally reduced to hornbook law as follows:

"It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature" (Patrolmen's Benevolent Assn. of City of NY v. City of New York, 41 NY2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338 [1976] ). Generally, courts "look first to the statutory text, which is the clearest indicator of legislative intent" (Matter of New York County Lawyers' Assn. v Bloomberg, 19 NY3d 712, 721, 955 N.Y.S.2d 835, 979 N.E.2d 1162 [2012] [internal quotation marks omitted] ). "[W]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning" (State of New York v. Patricia II., 6 NY3d 160, 162, 811 N.Y.S.2d 289, 844 N.E.2d 743 [2006] [internal quotation marks omitted] ).

Anonymous v. Molik, 32 NY3d 30, 37, 109 N.E.3d 563, 568 (2018)

There is no reference, directly or indirectly, or even inferentially, either in the wording of CRL § 70-a or its legislative history, that the monetary award of costs and attorney's fees should be tendered for anything over and above what the defendants paid out-of-pocket or would be directly liable for payment themselves. In this case that was the deductible sum of $5,000.00 and the obligation to pay the remaining outstanding balance of costs and attorney's fees calculated to [*4]be $48, 855.48.

What was the intention of Civil Rights Law 70-a, generally speaking and particularly with respect to the 2020 amendment that robustly empowered and mandated the courts to award the recovery of costs and attorney's fees to a successful defendant (per 70-a [1] [a]) who prevailed in a case brought against it that qualified under the statute? The most succinct way to answer that query is to go to the heartfelt words of one of its sponsors (Assemblymember Helene Weinstein, Judiciary Committee Chair) and the supportive commentaries of numerous public interests and other acutely affected supporters of the legislation.

Here are the comments of some of those deeply interested and knowledgeable parties quoted directly from the statute's New York Bill Jacket, 2020 Assembly Bill 5991:

1. BILL JUSTIFICATION (2nd paragraph):

"By an award of costs and fees, the Legislature had originally intended to address "threat of personal damages and litigation costs as a means of harassing, intimidating, or punishing individuals, unincorporated associations, not-for-profit corporations and others who have involved themselves in public affairs." L. 1992 Ch. 767 (italics added). This amendment to Section 70-A of the Civil Rights Law makes clear that a court "shall" impose an award of costs and fees, but only if the court fords that the case has been initiated or pursued in bad faith."

2. Letter in support from Assembly Sponsor Helene Weinstein to Governor Cuomo dated September 23, 2020, inter alia, "I write as Assembly sponsor of A.5991-A/S.52-A Second, the bill requires - rather than merely allows - an award of attorney's fees if the Court finds that the lawsuit was brought to silence free speech. Specifically, the Appellate Division, Second Department has noted the non-mandatory aspect of the anti-SLAPP law as concerns the awarding of attorney's fees and found no abuse of discretion in the lower court's failure to award same, a high standard to overcome to be sure. Matter of West Branch Conservation Ass'n Inc. v. Planning Board of the Town of Clarkstown, 222 AD2d 513 (2nd Dept 1995).

3. Letter in support from New York State Bar Association Committee on Media Law to Governor Cuomo, Senator Hoylman and Assemblymember Weinstein, inter alia, "Not only will meritless claims be dismissed faster; they will also be further disincentivized by the change from a discretionary to mandatory attorneys' fees standard. This will ensure a level playing field between the powerful and powerless by requiring SLAPP plaintiffs to cover defendant's legal expenses in the event of a dismissal (italics added")."

4. Legislative Memorandum from the NYCLU, inter alia, "The New York Civil Liberties Union (NYCLU) strongly supports A.5991-A (Weinstein) / S.52-A (Hoylman), which would strengthen an existing law that deters SLAPPs — frivolous lawsuits intended to punish First Amendment-protected speech Imagine the following scenario: a journalist publishes truthful, accurate information suggesting an elected official is unfit for office. The report damages the official's public image, but instead of responding on the merits, the official - who is wealthy and powerful — sues the journalist for defamation and [*5]invasion of privacy. The official knows the journalist's information is true and his lawsuit baseless, but that doesn't matter, because he also knows the journalist doesn't have the money or time to defend the suit and call the official's bluff. The journalist knows this too, and so, faced with financial ruin simply for telling the truth, she retracts her report and issues a public apology to the official, who then withdraws a lawsuit he knows he would have lost if he'd gone forward Lastly, an effective anti-SLAPP law requires a plaintiff whose SLAPP is dismissed to pay the defendant's attorney fees. This is a crucial deterrent, as SLAPP plaintiffs almost always have greater resources than the defendants they harass and intimidate, and usually don't care how much they spend as long as it costs the defendant too much to win (italics added)."

In addition to the above, the Bill Jacket contains a multitude of other widely respected and extremely sophisticated representatives from the legal, civil rights, and media communities in support of the amendment's passage in 2020, none of whom cited or raised the significance or rooted importance of reimbursing insurance companies for out-of-pocket expenses to cover their insureds legal fees which the carriers willingly accept when they sell the policies to earn the premiums received from a vast number of policyholders. The other supportive endorsers of the law's passage who made no mention of reimbursing the insurance industry for their calculated assessment of taking on the costs of litigation in exchange for receiving and profiting from the premium revenue income stream they knowingly analyze and assess to finance that coverage risk, included, (i) Viacom CBS, (ii) WarnerMedia, (iii) New York News Publisher Association, Inc., (iv) Association of American Publishers (with a listing of multiple members), (v) New York City Bar, (vi) The Reporters Committee for Freedom of the Press, (vii) The Walt Disney Company.(viii) Motion Picture Association and (ix) The Entertainment Software Association. There were no insurance companies, agency groups or industry associations who offered their "me too make sure we're covered" support of the law.

It is clear and unambiguous that the intent of the statute on the mandatory awarding of attorney's fees and costs in the actions described as qualifying for such an award was (and is) intended to "insure a level playing field between the powerful and the powerless" and provide retribution, in the appropriate case, against the "wealthy and powerful" who rampantly seek to devour the freedom of speech and liberty rights of those (particularly a journalist) who they "also know doesn't have the money or time to defend the suit." That desired goal and purpose of the law, to provide recovery of damages to the powerless against the malevolent wealthy and elite abusers of the constitutional freedoms the law seeks to protect, is worthy of the utmost respect and enforcement by the courts. The statute does not, however, even by an extrapolation of its plain wording and legislative history, extend to reimbursing insurance carriers who come nowhere near to being within the class of targeted litigant parties intended to be protected under the law to wit, the financially weak and powerless exercising their personal and individual constitutional rights of free speech and press.

Again, the statute reads cleanly and clearly that the defendant "shall" be allowed to recover "damages, including costs and attorney's fees" in a demonstrably unmeritorious case brought by the plaintiff. There is nothing in the statute that invites an interpretation of its wording to metamorphize itself into a recovery of costs and fees beyond that which a defendant [*6]directly incurred and paid (or would become responsible for paying) itself. In this case that has been determined and set in the sum of $53,855.48. It is inconceivable that the Legislature believed and intended to gratuitously award defendant(s) the additional sum of fees and costs paid by the carriers ($341,123.84) as an element of monetary damages relief under this specific subsection of the law (CRL § 70-a [1] [a]). In fact, the statute explicitly includes additional monetary relief potentially awardable to the defendant(s) in the form of recoverable compensatory and punitive damages (§§ 70-a [1] [b] and [c]) in cases that satisfy the elements of inflicted harm and damage suffered by the defendant(s) as described in those two subsections. If there was any intention whatsoever to include a windfall compensatory payment to the defendant party of the costs and fees paid by insurance carrier(s) in these cases the Legislature could have recognized and expressed that element of recovery in the law or at least alluded to its inclusionary benefit in the legislative history. The inescapable reality of all that musing is this: there is nothing in the law equating the costs and fees paid by an insurance carrier to be included as an add-on to the out-of-pocket monetary loss directly suffered and paid by the defendant(s).

Again, to be clear and on point in this regard, the defendants in these cases are entitled to recover all amounts paid by them personally and directly for costs and attorney's fees, in all forms. In the Court's view of the purpose and intent of the statute that would include amounts borrowed in the form of a loan from a bank (i.e., home equity line of credit or commercial line of credit), or from a credit provider (cash advance off of a credit card account), or even monies conditionally gifted by friends or family (e.g., any "gifting" being conditioned on a promise by the donee that some or all of the gifted support money would be repaid if recouped as part of an award of fees and costs, but entirely forgiven if no such recovery was ever obtained), along with any associated costs incurred with obtaining those forms of financial assistance to handle the costs incurred to defend themselves in one of these types of cases, such as upfront loan financing charges and all accrued interest on the amount of the borrowing until the date of recovery. Those kinds of personal monetary damages would all be clearly recoverable under the law as they reflect the infliction of financial harm suffered by a defendant to defend himself which should be shifted over and paid by the plaintiff.

The scenario at issue in the present case falls under the same penumbra as that seen in Cardo v Board of Managers, Jefferson Village Condo 3, 67 AD3d 945 (2nd Dept. 2009). The lower court awarded the defendant condominium attorney's fees and costs under the provisions of its by-laws. It was not initially known by the court that the fees had been paid by the defendant's insurer, but the award was nevertheless allowed to stand after the insurance carrier payments were discovered. The Second Department reversed the lower court on the attorney's fee and costs award, explicitly noting that "the framed-hearing (this factor not applicable to the present case) established that all of the legal fees billed in connection with this action had been paid, or soon would be paid, by the defendant's insurer, the Chubb Group, pursuant to a policy of insurance the defendant obtained to insure against the expenses of this litigation" and holding that "[h]ere, the defendant did not actually incur any of the expense of its legal representation and, in the absence of appropriate documentation demonstrating the defendant's right to seek an attorney's fee on behalf of its insurer(see, CPLR 1004), the defendant was not entitled to recover an award of an attorney's fee (citation string omitted)" for a non-party (the carrier, Chubb Group), id at 946-947 (italics added); accord Financial Services Vehicle Trust v Saad, 137 AD3d 849 (2nd Dept. 2016 (defendant failed to prove his "right to recover those expenses he did not personally pay ), and Leidner v Kevin & Stephen Corp, 26 Misc 3d 1220(A) (Sup. Ct. New York [*7]Co. 2009) (tenant/plaintiff held responsible under indemnification agreement "to indemnify the landlord solely for costs 'for which Owner shall not be reimbursed by insurance.'"

The most strident argument of persuasive authority cited and heavily relied upon by the defendants in urging the Court to "recognize" and adopt the "national jurisprudence" to award attorney's fees and costs in this action are several cases (five [5] cases out of California and the others from Connecticut, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Rhode Island and Vermont. The decisions rendered in those nine courts (some of which were notably trial court level enunciations of the court's interpretation of the eligibility of monies paid by third-party payors to be recoverable under that state's anti-SLAPP law) do not form a "national" consensus on the issue at hand and are not binding on this Court.

The one case most avidly advocated and relied upon by the defendants, however, is a New York Supreme Court case, Isaly v Garde, 2024 NY Slip Op 34311[U] (Sup Ct, NY County Dec. 9, 2024). The court's 4-page Decision and Order in Isaly confirmed the Report and Recommendation (the "Report") of the appointed Special Master (2024 NY Misc. LEXIS 13558 (Sup Ct, NY County Oct. 25, 2024, No. 160699/2018) who made an extensive review of the whole billing schematic relative to the scope, extent and reasonableness of the billable invoicing that was put before the Special Master to review for an award of anti-SLAPP law attorney's fees. The fact that the fees were paid by defendant's insurance carrier, however, was merely side noted by the Special Master in the Report fundamentally referring to the role of the carrier as a "first-level payor,"^[FN5] which may be understandable in that case, inasmuch as the whole point of contention on this insurance offset issue was never raised by the plaintiff as a source of offset or credit against the awardable balance. Indeed, a review of plaintiff's post-hearing opposing Memorandum in Opposition that was submitted to the Special Master makes no mention, not a single word, of how or to what extent, if any, the insurance carrier's payments should be treated in determining the fair analysis of the fee application.^[FN6] To the contrary, plaintiff in the present case made an extensive showing and full-throttled argument in its opposing papers relative to the payments made by the carriers of all the expenses incurred to defend this action for the defendants (after the $5,000.00 deductible). See, Attorney Affirmation, Dkt. No. 270, pages 6-10, ¶¶ 11-25. The determination made in Isaly, therefore, is not persuasive at all on the issue at hand (the carrier's payment of the expenses) because for some reason it was overlooked entirely and simply accepted as a given, which in similar respects, is the contention being made by defendants in this case.

The "American Rule" on the principle of "no fee-shifting" of attorney's fees is well-established and long standing in New York:

"Under the general rule, attorneys' fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule" (Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 NY2d 1, 5, 511 N.Y.S.2d 216, 503 N.E.2d 681 [1986])."

Mount Vernon City Sch. Dist. v. Nova Cas. Co., 19 NY3d 28, 39 (2012)

In the present case the fees at issue do not arise from being "authorized by agreement between the parties or court rule." The application/motion for the fee award is made by statutory authority under CRL § 70-a (1) (a). "Inasmuch as fee-shifting provisions are an exception to the "American Rule," they must be strictly construed (see Baker v. Health Mgt. Sys., Inc., 98 NY2d 80, 88, 745 N.Y.S.2d 741, 772 N.E.2d 1099 [2002], rearg denied 98 NY2d 728, 749 N.Y.S.2d 478, 779 N.E.2d 189 [2002]; Fiala v. Metropolitan Life Ins. Co., 6 AD3d 320, 323-324, 776 N.Y.S.2d 29 [1st Dept. 2004]).

Criss v. New York State Department of Health, Office of Temporary and Disability Assistance, 192 AD3d 1545, 1549 (4th Dept. 2021).

While attorney's fees granted and governed by statute are to be "strictly construed" there is no doubt that the Legislature has found the statutory awarding of attorney's fees to a "prevailing party" to be reasonable, necessary and important to "level the playing field" in a wide range of litigation settings. A relevant example is found in cases against the state (possibly the most proverbial "little guy versus the big guy) where a prevailing party can get an award of attorney's fees under CPLR § 8601 (a): "Fees shall be determined pursuant to prevailing market rates for the kind and quality of the services furnished, except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings." The most common and widely litigated area of attorney fee application review, to wit, matrimonial actions under DRL § 237, is grounded on the same necessity to provide "equal footing" to the underdog litigant based on "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." The propriety and scope of statutory attorney's fee awards is also found in FOIL proceedings under Public Officers Law § 89 (4) (c).

There are even statutory provisions for the awarding of attorney's fees that stem from a private agreement of the parties where one-side (typically the party with the upper-hand) is emboldened with the right to claim attorney's fees against the weaker party who is denied the same right under the agreement, see Real Property Law, § 234 (1) (tenant is given a statutory right to claim recovery of attorney's fees to match the unilateral recovery given to the landlord under a residential lease). Similar statutory leveling of the litigation posture with respect to attorney's fees is found in Real Property Law § 282 (attorney's fee awardable to a successful mortgagor who is the "prevailing party" in defending itself in a residential property foreclosure action where the mortgage includes the right to recover attorney's fees in favor of the mortgagee). Even in the realm of insurance industry litigation there is a well-recognized statutory provision for an individual insured (the "weaker" party) to claim and receive attorney's fees against his/her auto insurance carrier (the "powerful" party) in cases where the insured has to bring an action or proceeding to recover the payment of no-fault benefits (Insurance Law § 5106 [a] and there is no bilateral recovery for the carrier in those cases.

Moreover, the recovery of litigation costs and fees are not seen or recognized in any other realm of broadly issued insurance policy coverages. A successful behind the scenes insurer (e.g., auto insurance carriers, homeowners, commercial, and industrial property and casualty carriers, medical/life/disability/pharmaceutical coverage providers) who pays all the fees for defense counsel under policies issued to cover every other form of widely pronounced litigation that arises from the vagaries of harm associated with the daily grind of human affairs and shortcomings — serious personal injury, death and the emotional distress and other pecuniary damages suffered by persons harmed in those types of cases, have no right or expectation of [*8]recovering those litigation defense costs. It just isn't out there, in any other way, shape or form.

The binding New York case law on the plain reading of a statute and the strict interpretation required to be given to mandatory "fee-shifting" statutes requires a repeat DENIAL of relief sought by the defendants under CPLR Rule 2221 (d) and (e) (motions to reargue or renew) to revise, amend or modify the Decision and Order previously issued and granted by the Court. For today's purposes, the State Legislature has granted specific recovery recourse in the form of an award of costs and attorney's fees incurred by defendant parties those who are viewed as being at a significant financial or economic disadvantage to defend themselves and all others (even well-financed members of the global media community) who are unjustly catapulted into the financial grist mill of defending themselves in SLAPP cases that are unmeritorious as defined by lacking a "substantial basis in fact or law" and should not have been brought against them in the first instance.

The intended purpose of the law was to "level the playing field" and empower the "weak" to confront and defend themselves against the "mighty" (to help the "powerless" from being trounced upon by the "powerful") by conferring upon them the right to recover all the legal expenses they incurred to get through that struggle. The law also has a coterminous purpose, to wit, to serve as a deterrence against those who flagrantly spew out worthless and baseless lawsuits and hold them accountable for the actual out-of-pocket financial pain and suffering inflicted on the party(ies) they sue, even the counterpart rich and powerful when a plaintiff foolishly chooses to bring a worthless action against one of them. To some extent, and in many instances, whatever a plaintiff has to pay to his own counsel to bring and pursue these SLAPP actions should be a disincentive in the first place. In this case, both parties were exceptionally and ardently represented by highly skilled and respected counsel. What plaintiffs must now pay to satisfy the award that has been granted to the defendants is on top of what they (plaintiffs) have paid to the distinguished law firm that represented them that would seemingly serve as a deterrence to any "business-minded" person to not go through this type of exploitive waste of time and money again (or in the first place).

The defendants' contention that it is somehow universally known that the media giants who are often the subject of these SLAPP lawsuits are covered by insurance policies in the vast number of cases (purportedly in the range of 99.44%)^[FN7] does not buttress the proposition that it was widely and openly known to the Legislature that it was the insurance industry who was always intended to be the beneficiary of the statutory recovery of costs and attorney's fees. The law does not say that, and nowhere in the legislative history is there a hint that the purpose of the law was to accomplish that goal. In fact, a thorough review and pointed distillation of the legislative history confirms that passage of the law was focused on helping the disadvantaged who are victimized by these lawsuits. The insurance industry does not fit into that recognizable class of vulnerable parties intended to be protected by the statute.

Submit order accordingly.