The following e-filed documents, listed by NYSCEF document number (Motion 001) 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 166, 167, 168, 169, 170, 172 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION In this defamation action, defendants Arjun Appadurai (Appadurai), Deborah Borisoff (Borisoff), Stephen Duncombe (Duncombe), Allen Feldman (Feldman), Lisa Gitelman (Gitelman), Radha S. Hegde (Hegde), Nicholas Mirzoeff (Mirzoeff), Susan Murray (Murray), Arvind Rajagopal (Rajagopal), Marita Sturken (Sturken), Aurora Wallace (Wallace), Jamie Skye Bianco (Bianco), Paula Chakravartty (Chakravartty), Brett Gary (Gary), Ted Magder (Magder), Mara Mills (Mills), Juan Piñon (Piñon), Natasha Schüll (Schüll), Nicole Starosielski (Starosielski), and Alexander Galloway (Galloway) (collectively, defendants) move, pursuant to CPLR 3211 (a) (1) and (a) (7), CPLR 3211 (g) and Civil Rights Law §§70-a and 76-a, to dismiss the complaint brought by plaintiff Dr. Mark Crispin Miller with prejudice, and to recover their costs, attorney’s fees and compensatory and punitive damages. BACKGROUND The following facts are drawn primarily from the complaint unless otherwise indicated and are assumed to be true for purposes of this motion (see Kronos, Inc. v. AVX Corp., 81 NY2d 90, 92 [1993]). Plaintiff is a tenured professor in the Department of Media, Culture and Communication (the Department or MCC) at New York University (NYU) (NY St Cts Elec Filing [NYSCEF] Doc No. 110, Jeremy A. Chase [Chase] affirmation, exhibit 2, 9). Defendants are all current or former professors in the Department (id., 10). On October 21, 2020, defendants signed a letter (the Letter) addressed to nonparties Dean Jack Knott (Knott) and Provost Katherine Fleming at NYU purporting to advance certain facts about plaintiff. The Letter begins with the statement that the “undersigned faculty…affirm the values of academic freedom,” and continues with, “[plaintiff] is currently circulating a petition accusing our department of violating his academic freedom and conducting an email campaign against the department. Over the years, many of us have been distressed and concerned over the positions that Professor Miller has espoused on his highly visible website, where he prominently displays his title as a full tenured professor in our department. These positions include characterization of transgender surgery as a eugenic form of sterilization, direct mockery ridicule of trans individuals, and denial of the Sandy Hook elementary school shooting” (NYSCEF Doc No. 110 at 14). Defendants referred to student complaints about plaintiff’s classroom conduct and “the way in which he engages discussion around controversial views and non-evidenced based arguments” (id.). They wrote that he has “attacked a student who publicly objected to his criticism of mask usage in an in-classroom setting, and used his position of authority to intimidate students who choose to wear masks and abide by NYU policy, New York State law, and CDC guidelines,” and that his act of naming and publishing the student’s contact information had led to cyberbullying (id.). Defendants expressed, “[w]e do not condone nor will we tolerate intimidation of students, staff, and colleagues” (id.). The Letter concludes: “We call on Steinhardt and University leadership to publicly support the NYU community and undertake an expedited review, as per the Faculty Handbook and Title IV, of Professor Miller’s intimidation tactics, abuses of authority, aggressions and microaggressions, and explicit hate speech, none of which are excused by academic freedom and First Amendment protections. If your review substantiates our claims, we ask that you publicly condemn his actions and take whatever further disciplinary measures are deemed appropriate. It is unacceptable to remain silent in the face of ongoing harm to our students. Further, we call upon the administration to establish stronger protocols and policies to protect students, staff, and nontenured faculty members from intimidation and harm” (id. at 15). Plaintiff commenced this action on November 30, 2020. The complaint dated December 4, 2020 pleads a single cause of action for defamation predicated upon alleged misstatements of fact in the Letter (NYSCEF Doc No. 110,
5 and 11), a copy of which is attached to the complaint. According to the complaint, the purported facts as opposed to “opinion” are: “a) Plaintiff is circulating a petition accusing the department of violating his academic freedom; b) Plaintiff is conducting an ‘email campaign against the department’; c) Plaintiff has a highly visible web site; d) Plaintiff prominently displays on his web site his title as a full tenured professor; e) Plaintiff has taken certain controversial positions on the web site; f) Specifically, plaintiff has characterized transgender surgery as a eugenic form of sterilization; g) Plaintiff has engaged in direct mockery and ridicule of trans individuals on his web site; h) On his web site, plaintiff took the position that the Sandy Hook shooting did not occur; i) Students have regularly complained about plaintiff’s conduct in the classroom; j) Students have complained about ‘the way in which’ plaintiff engages in discussions and controversial subjects; k) Students have complained that plaintiff advances ‘non-evidence’ based arguments; l) Despite these complaints, plaintiff has not improved his behavior; m) Plaintiff recently attacked a student who publicly objected to his classroom criticism of those who choose to wear masks; n) Plaintiff uses his authority to intimidate students who choose to wear masks; o) Plaintiff repeatedly and publicly identified the student who publicly objected to his classroom criticism of those who choose to wear masks; p) Due to his publication of this student’s name and contact information, she has been repeatedly cyber-bullied and threatened; q) Plaintiff has repeatedly used intimidation tactics; r) Plaintiff has repeatedly committed abuses of authority; s) Plaintiff has repeatedly engaged in aggressions and microaggressions, including ‘hate speech’” (id., 12). The complaint alleges that statements 12(f) to (h) cause those reading the Letter to believe that plaintiff is “mentally unstable and unworthy of belief”1 (id., 15). Statements 12(i) to (l) allegedly “mis-portray plaintiff as someone who poorly discharged his responsibilities as a university professor and sought to intimidate students and limit discourse” (id., 16). Statements 12(m) to (p) are alleged by plaintiff to be false because plaintiff did not attack a student for wearing a mask or for supporting those who choose to wear masks, and because plaintiff did not disseminate any information about the subject student or cause the student to suffer abuse on social media (id., 19). Statements 12(q) to (s) allegedly denigrate plaintiff in his profession (id., 20). NYU’s investigation is ongoing (id., 14). Plaintiff maintains that these 19 factual claims have caused him “embarrassment, humiliation, a loss of professional standing, emotional distress and exacerbated the symptoms of a serious physical illness he suffers” (id., 26). In lieu of serving an answer, defendants move for dismissal on the ground that this action is a strategic lawsuit against public participation (SLAPP) brought by plaintiff in retaliation against them for exercising their free speech rights on issues of public interest. They posit that the defamation claim lacks a substantial basis in law and should be dismissed under New York’s anti SLAPP law and CPLR 3211 (a) (1) and (a) (7). The motion is supported by defendants’ affidavits and excerpts from plaintiff’s website and social media accounts, among other exhibits. Plaintiff, in opposition, tenders his affidavit, a copy of the petition he had filed on change.org and numerous unsworn statements from students.2 DISCUSSION A. Civil Rights Law §§70-a and 76-a Defendants argue that the present lawsuit meets the definition of a SLAPP suit because they were engaged in lawful conduct in furtherance of their constitutional right of free speech on matters of public interest, namely inappropriate classroom behavior; public health protocols on mask wearing during the ongoing COVID-19 pandemic; a public attack on an undergraduate student (Student A) by a professor at that university; anti-transgender sentiments; and the Sandy Hook elementary school shooting. Plaintiff, in response, argues that this action concerns a private dispute between him, defendants and NYU involving defendants’ request for an expedited review into his conduct by NYU. He questions the timeliness of the Letter which was written one month after he allegedly attacked Student A. In addition, plaintiff claims that any concerns defendants may have had regarding his alleged anti-transgender sentiments and Sandy Hook denial would not likely “assist with the alleged public interests claimed” given that their remarks were made in a “private presentation” (NYSCEF Doc No. 166, plaintiff mem of law at 55-56). CPLR 3211 (g) governs motions to dismiss SLAPP suits. If the defendant on a motion brought under CPLR 3211 (a) (7) shows that the action involves public petition or participation, then the plaintiff must demonstrate that “the cause of action has a substantial basis in law” (CPLR 3211 [g] [1]). The court must consider the pleadings and supporting and opposing affidavits in making this determination (CPLR 3211 [g] [2]). If the plaintiff fails to satisfy this burden, then, in addition to dismissal, the court shall award the defendant their costs and attorney’s fees (see Civil Rights Law §70-a [1] [a]). SLAPP suits “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, 137 n 1 [1992], rearg denied 81 NY2d 759 [1992], cert denied 508 US 910 [1993]). As a result, New York’s anti-SLAPP statute is “specifically aimed at broadening the protection of citizens facing litigation arising from their public petition and participation” (id.). The anti-SLAPP law must be strictly construed (see 315 W. 103 Enters. LLC v. Robbins, 171 AD3d 466, 467 [1st Dept 2019], lv dismissed 34 NY3d 1151 [2020]). In 2020, the anti-SLAPP law was amended to expand the definition of an “action involving public petition and participation” (see Civil Rights Law §76-a, as amended by L 2020, ch 250, §2). Civil Rights Law §76-a (1) (a) now reads, in part: “An ‘action involving public petition and participation’ is a claim based upon: (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.” Civil Rights Law §76-a (1) (d) directs that the term “‘[p]ublic interest’ shall be construed broadly, and shall mean any subject other than a purely private matter.” A plaintiff in an action involving public petition and participation may recover damages only if: “in addition to all other necessary elements, [the plaintiff] 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 [2]). Here, defendants have failed to demonstrate that Civil Rights Law §76-a (1) (a) (2) applies to this action. “A matter of public concern is generally ‘any matter of political, social or other concern to the community’” (Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F 3d 158, 164 [2d Cir 2006], cert denied 549 US 953 [2006]), and involves “‘a dispute that in fact has received public attention because its ramifications will be felt by persons who are not direct participants’” (Fairley v. Peekskill Star Corp., 83 AD2d 294, 298 [2d Dept 1981], quoting Waldbaum v. Fairchild Publications, 627 F 2d 1287, 1296 [DC Cir 1982], cert denied 449 US 898 [1982]). To be sure, the issue of public health is a matter of public concern (see Bridgeford v. Armstead, 2021 WL 1390641, *6, 2021 US Dist LEXIS 72047, *17 [D Md, April 13, 2021, No. PJM-20-1261] [stating that "[p]ublic health is a matter of public concern and limiting the spread of COVID-19 is a matter of public interest”]). The Letter touches upon other topical issues of the time, as well. However, “publications directed only to a limited, private audience are ‘matters of purely private concern’” (Huggins v. Moore, 94 NY2d 296, 302 [1999], quoting Dun & Bradstreet v. Greenmoss Bldrs., 472 US 749, 759 [1985]). In this case, defendants published the Letter by email to a limited audience — the dean for MCC and the provost for NYU. That the Letter was transmitted to only two people implies that the communication involves a matter of purely private concern. Defendants’ attempt to transform a purely private matter into one involving a matter of public interest fails. The 2020 amendments to Civil Rights Law §76-a were meant to reinforce the original objective of the statute, which was “to provide the utmost protection for the free exercise or speech, petition, and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern.” (Palin v. New York Times Co., 510 F Supp 3d 21, 27 [SD NY 2020] [internal quotation marks and citation omitted]). It can hardly be said that the Letter, transmitted by email to two people, qualifies as a communication made in a public forum (see e.g. Center for Med. Progress v. Planned Parenthood Fedn. of Am., 2021 WL 3173804, *9, 2021 US Dist LEXIS 140055, *26 [SD NY, July 27, 2021, No. 20 Civ. 7670 (CM)] [reasoning that Civil Rights Law §76-a (1) applied to statements published on Twitter and Rewire News, which were both open the public]). Notably, while the Letter references plaintiff’s petition, defendants did not submit the Letter to the website where the petition had been posted. Moreover, defendants each aver that it was never their intention to make the Letter public, and that it was plaintiff’s decision to publicize its contents on his website (NYSCEF Doc No. 87, Galloway aff, 10; NYSCEF Doc No. 88, Feldman aff,
