ORDER Defendants, Dulce Maria Rivera (“RIVERA”), Jennifer Gray-Brumskine (“BRUMSKINE”), and Make the Road New York, Inc., (“MTR”), motion, for an order granting summary judgment on their first, third, and sixth counterclaims is granted to the extent detailed herein. Plaintiffs Kimso Apartments LLC., Poonam Apartments LLC and 185-225 Park Hill LLC are owners and landlords of approximately 1,100 residential apartments located on Park Hill Avenue on Staten Island. Plaintiffs have Housing Assistant Payment Contracts (“HAP”) with the United States Department of Housing and Urban Development (“HUD”). Defendants RIVERA and BRUMSKINE were employees of Defendant Make The Road New York Inc. Defendant MTR is a domestic not for profit corporation engaged in community activism and tenant organizing. Plaintiffs allege that in efforts to organize tenants at Plaintiffs’ Buildings, Defendants engaged in a pattern of intimidation and abuse of Plaintiffs’ employees, workers, agents and tenants. Plaintiffs allege Defendants actively prevented Plaintiffs’ employees, workers and agents from performing their tasks in both maintenance and administration. On February 26, 2020, the Appellate Division, Second Department reversed an Order, dated March 8, 2018, by the Honorable Alan Marin, which had denied Defendants’ motion for summary judgement to dismiss Plaintiffs’ claims related to defamation and tortious interference with contract. The Appellate Division granted Defendants’ motion dismissing Plaintiffs’ claims. Defendants have alleged counterclaims and are now seeking summary judgment on three of those counterclaims. In order to prevail on a motion for Summary Judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence demonstrating the absence of any material issue of fact. See Klein v. City of New York, 89 N.Y.2d 833, 652 N.Y.S.2d 723 (1996); Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463 (1993); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). Defendants are seeking summary judgment on their first counterclaim under Civil Rights Law Section 70-a, the “anti-SLAPP statute.” That statute was enacted to protect against lawsuits that constitute an assault on First Amendment rights. Defendants argue all of the conditions necessary to prevail on an anti-SLAPP claim are present here: Park Hill is a “public permittee” who filed a meritless suit that was “materially related” to the Make The Road Parties’ opposition to the public permissions Park Hill receives. Defendants also seek an award of attorneys’ fees and costs and compensatory, as well as punitive damages, which Defendants assert are authorized by the anti-SLAPP statute. “Civil Rights Law §76-a was passed to protect citizens facing litigation arising from their public petitioning and participation by deterring strategic lawsuits against public participation, termed SLAPP suits. Related provisions passed in the same bill include Civil Rights Law §70-a, which permits a defendant in such actions to recover costs and an attorney’s fee.” Southampton Day Camp Realty, LLC v. Gormon, 118 A.D.3d 976, 990 N.Y.S.2d 30 (N.Y.A.D. 2nd Dept. 2014). “A motion for summary judgment, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation, as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the action, claim, cross claim or counterclaim has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.” CPLR 3212(h). Civil Rights Law §76-a defines “Public applicant or permittee” as any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission. N.Y. Civ. Rights Law §76-a. Defendants assert that Plaintiffs, a federally controlled project subject to extensive regulation, a party to numerous HUD contracts, and the recipient of a wide range of significant funded benefits qualifies as a public permittee. Defendants further assert that the claims Park Hill brought against Defendants were materially related to their opposition to Park Hill’s public permissions. Defendants note that Park Hill’s Amended Complaint and its Attorney’s Affirmation in opposition to Defendants’ motion to dismiss each describe Defendants as attempting to procure the termination of HUD’s contracts with Park Hill. Plaintiffs oppose summary judgment on Defendants’ first counterclaim arguing that Plaintiffs are not public permittees as defined by statute. Plaintiffs’ allegations in this matter contradict Plaintiffs’ argument. “Civil Rights Law §76-a is applicable since the instant action is an action ‘involving public petition and participation,’ defined as an ‘action…for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission’.” Singh v. Sukhram, 56 A.D.3d 187, 866 N.Y.S.2d 267 (N.Y.A.D. 2nd Dept. 2008). Plaintiffs’ allegations, as contained in their Verified Complaint, dated, April 24, 2017, and Amended Verified Complaint, dated June 12, 2017, make it clear that this dispute focuses on Defendants’ efforts related to Plaintiffs’ relationship with HUD and the associated HAP contracts. Plaintiffs’ have failed to demonstrate that the action has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law. Per CPLR 3212(h), Defendants’ motion must be granted on the first counterclaim. Having granted summary judgment on this counterclaim, the Court will send the issue of fees and costs for a framed issue hearing. The issue to be decided shall be limited to costs and attorney’s fees only. Defendants’ requested additional relief of sanctions requires, “an additional demonstration that the action involving public petition and participation was commenced or continued for the sole purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.” N.Y. Civ. Rights Law §76-a. Plaintiffs submitted evidence of services provided to Defendants which preclude the Court granting summary judgment on this additional requirement for punitive damages. Defendant RIVERA seeks summary judgment on the third counterclaim against 185-225 Park Hill, LLC alleging violations of her rights under New York Real Property Law Section 230. Section 230 provides that “[n]o landlord shall interfere with the right of a tenant to form, join or participate in the lawful activities of any group, committee or other organization formed to protect the rights of tenants; nor shall any landlord harass, punish, penalize, diminish, or withhold any right, benefit or privilege of a tenant under his tenancy for exercising such right.” N.Y. Real Prop. Law §230. RIVERA seeks a permanent injunction enjoining Park Hill from suppressing, harassing, and punishing her lawful tenant organizing activity. Plaintiffs oppose summary judgment on the third counterclaim, stating that in order to prove the elements of a cause of action an affidavit by someone with personal knowledge is required. Plaintiffs argue that Defendants have not met their prima facie burden, due to the absence of any such affidavit, most notably there is no affidavit from RIVERA. The Court agrees. Santos v. ACA Waste Servs., Inc., 103 A.D.3d 788, 959 N.Y.S.2d 729 (N.Y.A.D. 2nd Dept. 2013); Bellafiore v. L & K Holding Corp., 244 A.D.2d 443, 664 N.Y.S.2d 353 (N.Y.A.D. 2nd Dept. 1997). Defendant RIVERA also seeks summary judgment on the sixth counterclaim against 185-225 Park Hill, LLC, which alleges breach of the Use Agreement between 185-225 Park Hill, LLC and HUD. Defendants argue that the Use Agreement grants RIVERA, as a tenant, an enforcement right. Plaintiffs again argue the lack of an affidavit from someone with personal knowledge, notably RIVERA. Additionally, Plaintiffs argue that there has been no showing of a breach of the Use Agreement to which RIVERA has an enforceable right. The Court agrees. The only remaining issue in the case shall be the fees and costs related to Defendants’ first counterclaim. As mentioned above, the Appellate Division, Second Department recently dismissed Plaintiffs’ claims against Defendants. The issue of fees and costs related to Defendants’ first counterclaim shall be decided by a Court Attorney Referee pursuant to a separate Order. All other requested relief is denied, so. ORDERED Defendants’ motion for summary judgment on Defendants’ first counterclaim is granted; and it is further ORDERED the fees and costs related to Defendants’ first counterclaim shall be determined by a Court Attorney Referee; and it is further ORDERED that all other requested relief is denied; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. THIS IS THE DECISION AND ORDER OF THE COURT. Dated: July 24, 2020
