Case 1:11-cv-02670-PKC-GWG Document 249 Filed 12/11/13 Page 1 of 30
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`---------------------------------------------------------------X
`ASHOT EGIAZARYAN,
`:
`
`Plaintiff,
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`: REPORT AND RECOMMENDATION
`
`:
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` 11 Civ. 2670 (PKC) (GWG)
`:
`
`-v.-
`
`PETER ZALMAYEV,
`
`:
`
`:
`Defendant.
`---------------------------------------------------------------X
`GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
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`Plaintiff Ashot Egiazaryan brought this action for defamation and injurious falsehood
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`against Peter Zalmayev. Zalmayev counterclaimed for defamation and violation of New York
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`Civil Rights Law §§ 70-a and 76-a, which permit a victim of what are commonly called
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`“strategic lawsuits against public participation,” or “SLAPP” suits, to make a claim for
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`attorney’s fees, costs, and damages. All claims and counterclaims have been dismissed except
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`for Zalmayev’s anti-SLAPP counterclaim. Before the Court are the parties’ motions for
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`summary judgment on that counterclaim. For the following reasons, the counterclaim should be
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`dismissed.
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`I. BACKGROUND
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`A. Procedural History
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`Egiazaryan brought this action asserting claims of defamation and injurious falsehood.
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`See Complaint, filed April 19, 2011 (Docket # 1). Zalmayev moved to dismiss Egiazaryan’s
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`complaint for failure to state a claim. See Motion to Dismiss, filed June 21, 2011 (Docket # 15).
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`He also filed counterclaims, alleging that Egiazaryan defamed him and that Egiazaryan’s suit
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`was a SLAPP suit. See Answer and Counterclaim, filed Aug. 5, 2011 (Docket # 26) (“Answer”
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`Case 1:11-cv-02670-PKC-GWG Document 249 Filed 12/11/13 Page 2 of 30
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`or “Counterclaim”). Following a cross-motion by Egiazaryan to dismiss Zalmayev’s
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`counterclaims, Judge Castel dismissed Egiazaryan’s injurious falsehood claim and three of the
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`defamation claims. Egiazaryan v. Zalmayev, 2011 WL 6097136, at *6-9 (S.D.N.Y. Dec. 7,
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`2011) (“Egiazaryan I”). He granted Egiazaryan’s motion to dismiss Zalmayev’s defamation
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`counterclaim but denied his motion to dismiss the anti-SLAPP counterclaim. Id. at *9, 10-12.
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`Following this decision, Egiazaryan filed an amended complaint, which we will refer to
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`as “the complaint.” See Amended Complaint, filed Feb. 29, 2012 (Docket # 110) (“Compl.”).
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`The complaint omitted the injurious falsehood claim but asserted the same four defamation
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`claims contained in the original complaint. Id. After Zalmayev moved to dismiss, Judge Castel
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`granted the motion as to all four defamation claims and denied leave to further amend.
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`Egiazaryan v. Zalmayev, 880 F. Supp. 2d 494, 507-13 (S.D.N.Y. 2012) (“Egiazaryan II”).
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`Following this decision, all that remained was Zalmayev’s anti-SLAPP counterclaim. The
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`parties engaged in discovery on the counterclaim. Each side has now moved for summary
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`judgment.1
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` See Notice of Motion by Egiazaryan for Summary Judgment, filed Apr. 19, 2013
`1
`(Docket # 221); Memorandum of Law in Support of Egiazaryan’s Motion for Summary
`Judgment, filed Apr. 19, 2013 (Docket # 222) (“Pl. Mem.”); Plaintiff’s Statement of Material
`Facts Pursuant to Local Rule 56.1, filed Apr. 19, 2013 (Docket # 223); Declaration of Jason T.
`Cohen in Support of Egiazaryan’s Motion for Summary Judgment, filed Apr. 19, 2013 (Docket
`# 224) (“Cohen Decl.”); Notice of Cross-Motion by Zalmayev for Summary Judgment, filed
`June 6, 2013 (Docket # 229); Memorandum of Law in Opposition to Egiazaryan’s Motion for
`Summary Judgment and Supporting Zalmayev’s Cross-Motion for Summary Judgment, filed
`June 6, 2013 (Docket # 230) (“Def. Mem.”); Declaration of James P. Golden in Support of
`Zalmayev’s Opposition and Cross-Motion, filed June 6, 2013 (Docket # 231) (“Golden Decl.”);
`Zalmayev’s Statement of Material Facts Pursuant to Local Rule 56.1, filed July 3, 2013 (Docket
`# 232) (“Def. 56.1 Stat.”); Zalmayev’s Response to Egiazaryan’s Rule 56.1 Statement, filed June
`3, 2013 (Docket # 233) (“Def. 56.1 Response”); Memorandum of Law in Further Support of
`Egiazaryan’s Motion for Summary Judgment, filed July 3, 2013 (Docket # 235); Declaration of
`Jason T. Cohen in Support of Egiazaryan’s Motion for Summary Judgment, filed July 3, 2013
`(Docket # 236); Egiazaryan’s Response to Zalmayev’s Rule 56.1 Statement, filed July 3, 2013
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`2
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`B. Facts
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`The following facts are undisputed unless otherwise noted.
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`1. Parties
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`Egiazaryan is a former banker and former member of the Duma, Russia’s lower house of
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`parliament. Answer ¶ 4; Def. 56.1 Stat. ¶ 12. He was first elected as a member of the Duma in
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`1999 and continued in that role until 2010, when he left Russia for the United States, although
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`new elections for Duma members were not held until December 2011. Deposition of Ashot
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`Egiazaryan (“Egiazaryan Dep.”) 29, 32 (annexed as Ex. 34 to Golden Decl. and Ex. 44 to Cohen
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`Decl.). Egiazaryan alleges that he has been engaged in a “complex, international legal dispute
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`resulting from a Russian ‘corporate raid’ orchestrated by Russian Senator and billionaire
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`Suleyman Kerimov to steal [Egiazaryan’s] ownership interest in a project to rebuild and develop
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`the landmark Moskva Hotel.” Compl. ¶ 16. Egiazaryan also alleges that Kerimov was behind
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`various violent threats leveled against his family and, as a result, he moved to the United States
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`with his family. Id. ¶ 23. Once in the United States, Egiazaryan applied for asylum. See, e.g.,
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`Order, dated Mar. 14, 2012 (Docket # 112); Transcript of Conference held Apr. 11, 2012, at 2-21
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`(Docket # 140). However, since his arrival in the United States, Egiazaryan believes he has been
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`the victim of a “black (i.e., negative) public relations campaign . . . designed to . . . undermine
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`his chances of remaining in the United States and force him to return to Russia.” Compl. ¶ 27.
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`(Docket # 237); Memorandum of Law in Further Support of Zalmayev’s Cross-Motion for
`Summary Judgment, filed July 18, 2013 (Docket # 239) (“Def. Reply Mem.”); Egiazaryan’s
`Letter Brief in Response to Order of October 8, 2013, filed Oct. 16, 2013 (Docket # 243);
`Zalmayev’s Letter Brief in Response to Order of October 8, 2013, filed Oct. 16, 2013 (Docket
`# 242); Egiazaryan’s Letter Brief in Response to Order of November 4, 2013, filed Nov. 11,
`2013 (Docket # 248); Zalmayev’s Letter Brief in Response to Order of November 4, 2013
`(Docket # 247) (“Def. Nov. 11 Letter”).
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`3
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`Zalmayev’s counterclaim states that he is the executive director of the New York-based
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`“Eurasia Democracy Initiative,” which he founded to “promote democracy, the rule of law and
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`tolerance in post-Communist societies and countries in Eastern and Central Europe, the
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`Caucasus and Central Asia.” Counterclaim at 22, ¶ 5. He believes that Egiazaryan fled Russia
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`because the Duma voted to eliminate his legislative immunity and because he was indicted in
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`Moscow. Id. at 28-29, ¶¶ 26, 27, 29. Zalmayev is “opposed to Mr. Egiazaryan’s asylum
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`application and has written and collaborated with others to oppose [his] continued presence in
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`the United States.” Id. at 4, ¶ 18. In furtherance of this effort, Zalmayev has written or drafted
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`several articles and letters urging the United States to deny Egiazaryan asylum, as has been
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`alleged in the complaint. Deposition of Peter Zalmayev (“Zalmayev Dep.”) 157-59; 171-73;
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`179-80; 183-84; 225-28; 293-95; 418-22; 589-94 (annexed as Ex. 4 to Cohen Decl. and
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`supplemented Oct. 22, 2013 (Docket # 245)); Compl. ¶¶ 32, 36, 38-51. Zalmayev concedes that
`2
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`he was paid $100,000 by a person named Andrey Vavilov in connection with these activities,
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`Zalmayev Dep. 277-78; Def. 56.1 Response ¶ 3, and that the objective was to “prevent
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`Egiazaryan from obtaining asylum in the United States,” Def. 56.1 Response ¶¶ 3, 7. More
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`specifically, Zalmayev has admitted that “Andrey Vavilov retained Rinat Akhmetshin, who in
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`turn retained [Zalmayev], to engage in a project the objective of which was to prevent
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`Egiazaryan from obtaining asylum in the United States.” Id. ¶ 8. Thus, Zalmayev “received
`3
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` Zalmayev uses the word “commentaries” rather than articles. See, e.g., Counterclaim
`2
`at 9, ¶ 43; Def. 56.1 Response ¶ 9.b. The Court’s use of the term “articles” has no bearing on the
`resolution of the motion.
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` Egiazaryan’s complaint describes Akhmetshin as the “Washington, D.C.-based director
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`of the International Institute for Economic and Political Research and a paid political consultant
`and lobbyist.” Compl. ¶ 9.
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`4
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`the money indirectly from Vavilov, who paid Akhmetshin directly.” Id. ¶ 4. Zalmayev paid
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`Leonid Komarovsky, a friend and Boston-based radio host, $7,000 in connection with this
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`campaign, see Zalmayev Dep. 571-72, and has also retained an individual named Douglas
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`Bloomfield for this purpose, Def. 56.1 Response ¶ 4. Bloomfield testified at his deposition that
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`he was paid $20,000 for his participation. Deposition of Douglas Bloomfield (annexed as Ex. 3
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`to Cohen Decl.) 34. Zalmayev has also testified that “from the very beginning of [his and
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`Akhmetshin’s] engagement on this project, it was clear to [him] that Mr. Vavilov was Mr.
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`Akhmetshin’s paid client who had a grievance against Mr. Egiazaryan.” Zalmayev Dep. 127.
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`Zalmayev also conceded that “[t]here was a degree of animosity” held by Vavilov toward
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`Egiazaryan. Id. at 95. Akhmetshin testified at his deposition that “Vavilov hates [Egiazaryan’s]
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`guts.” Deposition of Rinat Akhmetshin (“Akhmetshin Dep.”) 102 (annexed as Ex. 2 to Cohen
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`Decl. and supplemented Oct. 22, 2013 (Docket # 244)). Zalmayev has not personally paid any
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`of the legal fees in this litigation; instead, his legal fees have been paid by Vavilov. See Def.
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`Mem. at 30-31. As of July 2012, Vavilov had already paid approximately $1,141,441 in legal
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`fees. See Defendant’s Responses to Plaintiff’s Second Set of Interrogatories to Defendant,
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`Response to Interrogatory No. 1, dated Apr. 17, 2012 (annexed as Ex. 5 to Cohen Decl.)
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`(identifying Vavilov as the source of payments to Zalmayev’s lawyers for “legal work
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`concerning this case or Mr. Egiazaryan”); Scanned Check Images from Andrey Vavilov to
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`Zalmayev’s Legal Team (annexed as Ex. 46 to Cohen Decl.). These payments are in addition to
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`the payments made by Vavilov to Akhmetshin and Zalmayev. See id.
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`2. Conduct Giving Rise to Egiazaryan’s Claims
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`On March 9, 2011, the Jewish Journal published an article titled “Hiding in Beverly
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`Hills” with Zalmayev listed as the author. See Jewish Journal Article (annexed as Ex. 5 to
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`Golden Decl. & Ex. 13 to Cohen Decl.); see also Compl. ¶¶ 32, 36, 38-57. The article described
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`Egiazaryan as a “fugitive Russian” who had his immunity stripped by the Russian Duma before
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`becoming the object of a state criminal investigation on charges that he “defrauded business
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`partners in a multimillion-dollar real estate deal that went south.” Jewish Journal Article at 1.
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`The article questioned his eligibility for asylum in the United States and described him as a
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`“prominent financial backer and member of the ultranationalist Liberal Democratic Party of
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`Russia (LDPR) headed by his friend Vladimir Zhirinovsky.” Id. at 2. The article states that
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`Zhirinovsky is “infamous for his outspoken anti-American and anti-Semitic attacks.” Id. The
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`article states that “Jewish groups in American [sic] and Russia have repeatedly condemned the
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`LDPR and its leader as anti-Semitic and have urged Americans, as a form of protest, to avoid
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`any meetings with members of Zhirinovsky’s party who may visit the United States.” Id. The
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`article describes the LDPR as the “Zhirinovsky-Egiazaryan party,” stating that the party has
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`“blam[ed] the Jews for sparking both the Bolshevik revolution and World War II, provoking the
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`Holocaust and masterminding 9/11.” Id. It concludes by urging the U.S. government to “put
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`anti-Semites worldwide on notice” with the following admonition: “You are not welcome in this
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`country.” Id.
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`While the precise nature of Zalmayev’s contribution is contested, it is undisputed that he
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`was closely involved with the publication of an article called “No Safe U.S. Haven for
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`Hatemongers,” published on March 14, 2011 in the Moscow Times, with Leonid Komarovsky
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`listed as the author. See Moscow Times Article (annexed as Ex. 14 to Cohen Decl.); see also
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`Compl. ¶¶ 36, 59-76. Zalmayev testified that he “drafted [the article] largely with
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`[Komarovsky’s] input.” Zalmayev Dep. 419. This article stated that Egiazaryan threatened the
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`“rapprochement” between the U.S. and Russia, and that Egiazaryan was a “member of the
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`notoriously anti-Semitic Liberal Democratic Party.” Ex. 14 to Cohen Decl. at 1. The article
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`argued that “[a]s a long-standing member of the [LDPR] and, consequently, its anti-Semitic and
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`xenophobic agenda,” Egiazaryan did not deserve “safe haven” in the United States. Id. It stated
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`that Jewish-American groups have repeatedly condemned “the LDPR’s anti-Semitic message”
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`and questioned why “anti-Semitic bigots like [E]giazaryan” are not banned from the United
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`States. Id. at 2.
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`In addition to writing or helping to disseminate these two publications, Zalmayev also
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`“collaborated” with human rights activists Lev Ponomarev and Lyudmila Alexeyeva, who sent
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`several letters in January 2011 about Egiazaryan to Representative Chris Smith, identified as the
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`“Ranking Member of the Commission on Security and Cooperation in Europe,” expressing
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`concerns over Egiazaryan’s presence in the United States (the “Ponomarev and Alexeyeva
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`Letters”). Zalmayev Dep. 157-60; 171-73; 179-80; 183-84; Def. 56.1 Response ¶ 9.c; see also
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`Compl. ¶¶ 36, 77-94. On January 29, 2011, a letter signed by Ponomarev was sent to
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`Representative Smith. See Ponomarev Letter (annexed as Ex. 16 to Cohen Decl.) The letter
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`stated that Egiazaryan was deputy chairman of a Duma committee “entrusted with funds for the
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`reconstruction of the war-torn [Chechnya] region,” a “large portion” of which allegedly did not
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`reach their intended recipient. Id. As such, according to the letter, “[Egiazaryan] was a
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`contributor to the destructive second Chechen War.” Id. The letter urged Representative Smith
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`to raise concerns about Egiazaryan’s past with “relevant officials at the State Department and the
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`Department of Homeland Security” and to raise these concerns in an “ongoing discussion in
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`Congress of creating a no-entry list for foreign officials.” Id. Alexeyeva sent a similar letter to
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`Representative Smith on January 30, 2011, which again raised the issue of the “no-entry list” for
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`“corrupt foreign government officials.” See Alexeyeva Letter (annexed as Ex. 16 to Cohen
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`Decl.). This letter identified Egiazaryan as a “ranking member of Vladimir Zhirinovsky’s ultra-
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`nationalist Liberal-Democratic Party of Russia” and stated that he “provid[ed] cover for the
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`numerous well-documented atrocities during the war.” Id. It elaborated that the committee’s
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`“management of the funds” meant for Chechnya’s reconstruction was “said to have resulted in
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`significant amounts never reaching their destination — the destitute people of the war-torn
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`republic.” Id. It urged Representative Smith to support the no-entry list initiative and to inquire
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`with the State Department and the Department of Homeland Security. Id. Both Ponomarev and
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`Alexeyeva retracted their letters within days of sending them. See Retractions, dated Feb. 7,
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`2011 (annexed as Ex. 18 to Cohen Decl.). The retractions — addressed to several members of
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`Congress, including Representative Smith and two others — indicate that Ponomarev and
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`Alexeyeva chose to withdraw their signatures from the letters based on having made “grave
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`mistake[s].” Id.
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`The complaint includes allegations that human rights and Jewish advocacy organizations
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`— specifically, Freedom House, the American Jewish Committee, and the National Council on
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`Soviet Jewry — sent the “United States Department of State Office to Monitor and Combat
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`Anti-Semitism” and the United States Department of Homeland Security two letters that
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`defamed Egiazaryan and were “ghost-written” by Zalmayev, Akhmetshin, and Bloomfield on
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`behalf of these groups (the “Freedom House Letters”). See Compl. ¶¶ 32, 36, 95-106. Zalmayev
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`testified that he “played a principal role in drafting” the letters. Zalmayev Dep. 589-90. The
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`two letters are nearly identical and stated that “Mr. Egiazaryan has for years been one of the
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`leaders and a Duma representative of the Liberal Democratic Party of Russia . . . which is known
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`for its virulently anti-Semitic, anti-American and xenophobic views.” See Freedom House
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`Letters (annexed as Ex. 19 to Cohen Decl.). They further recounted Zhirinovsky’s alleged anti-
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`Semitic views and statements. The letters concluded that the United States must “once again
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`demonstrate its intolerance for bigotry by denying [Egiazaryan’s] bid for political asylum” and
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`urged the recipients (i.e., the Departments of State and Homeland Security) to “oppose any
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`request for political asylum for Egiazaryan.” Id.
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`II. APPLICABLE LAW
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`A. Law Applicable to Motions for Summary Judgment
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`Both parties have moved for summary judgment pursuant to Rule 56 of the Federal Rules
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`of Civil Procedure. See Notice of Motion by Egiazaryan for Summary Judgment, filed Apr. 19,
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`2013 (Docket # 221); Notice of Cross-Motion by Zalmayev for Summary Judgment, filed June
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`6, 2013 (Docket # 229). Under Rule 56(a), summary judgment is appropriate when “the movant
`4
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`shows that there is no genuine dispute as to any material fact and the movant is entitled to
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`judgment as a matter of law.” A genuine issue of material fact exists “if the evidence is such
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`that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 248 (1986).
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`In determining whether a genuine issue of material fact exists, “[t]he evidence of the
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`non-movant is to be believed” and the court must draw “all justifiable inferences” in favor of the
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`nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
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`Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted
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`if the nonmovant fails to make a showing sufficient to establish the existence of an element
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`essential to its case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex Corp.
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` We will assume without deciding that an anti-SLAPP counterclaim is to be treated as
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`an ordinary claim for procedural purposes — that is, one that would be the subject of a plenary
`trial.
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`v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation marks omitted)); see also Brady v. Town
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`of Colchester, 863 F.2d 205, 210-11 (2d Cir. 1988) (where the “nonmovant will bear the ultimate
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`burden of proof at trial on an issue, the moving party’s burden under Rule 56 will be satisfied if
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`he can point to an absence of evidence to support an essential element of the nonmoving party’s
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`claim.”). Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails
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`to come forward with enough evidence to create a genuine factual issue to be tried with respect
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`to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citation
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`omitted); accord Parker v. Sony Pictures Entm’t, Inc., 260 F.3d 100, 111 (2d Cir. 2001) (“A
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`defendant need not prove a negative when it moves for summary judgment on an issue that the
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`plaintiff must prove at trial. It need only point to an absence of proof on plaintiff’s part, and, at
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`that point, plaintiff must designate specific facts showing that there is a genuine issue for trial.”)
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`(internal quotation marks and citation omitted); Feurtado v. City of New York, 337 F. Supp. 2d
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`593, 599–600 (S.D.N.Y. 2004). The party with the burden of proof “may not rely on conclusory
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`allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)
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`(citations omitted), but instead must offer “concrete evidence from which a reasonable juror
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`could return a verdict in his favor,” Anderson, 477 U.S. at 256; accord Major League Baseball
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`Prop., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (citation omitted); see also Niagara
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`Mohawk Power Corp v. Jones Chem. Inc., 315 F.3d 171,175 (2d Cir. 2000) (“The ‘mere
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`existence of a scintilla of evidence’ supporting the non-movant’s case is also insufficient to
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`defeat summary judgment.”) (quoting Anderson, 477 U.S. at 252). Where it is clear that no
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`rational finder of fact “could find in favor of the nonmoving party because the evidence to
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`support its case is so slight, summary judgment should be granted.” FDIC v. Great Am. Ins. Co.,
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`607 F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs., Ltd. P’ship, 22
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`F.3d 1219, 1224 (2d Cir. 1994)).
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`B. New York’s Anti-SLAPP Statute
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`Before turning to the text of New York’s anti-SLAPP, we begin by noting that in a
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`diversity case such as this one, “[w]here the substantive law of the forum state is uncertain or
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`ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum
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`state would resolve the uncertainty or ambiguity.” Travelers Ins. Co. v. 633 Third Assoc., 14
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`F.3d 114, 119 (2d Cir. 1994). “In making this prediction, we give the fullest weight to
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`pronouncements of the state’s highest court . . . while giving proper regard to relevant rulings of
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`the state’s lower courts.” Travelers Ins. Co. v. Carpenter, 411 F.3d 323, 329 (2d Cir. 2005)
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`(citation omitted). Our task is to “carefully review available resources to predict how the New
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`York Court of Appeals would resolve the questions at bar. . . . These resources include the
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`statutory language, pertinent legislative history, the statutory scheme set in historical context,
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`how the statute can be woven into the state law with the least distortion of the total fabric, state
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`decisional law, federal cases which construe the state statute, scholarly works and any other
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`reliable data tending to indicate how the New York Court of Appeals would resolve the issue.”
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`633 Third Assoc., 14 F.3d at 119 (citation and internal punctuation omitted).
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`New York Civil Rights Law § 70–a allows a defendant in an “action involving public
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`petition and participation” to bring a claim against the person who brought that suit provided
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`certain additional conditions are met. Costs and attorney’s fees for defending the suit may be
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`recovered if there is a “demonstration that the [SLAPP action] was commenced or continued
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`without a substantial basis in fact and law and could not be supported by a substantial argument
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`for the extension, modification or reversal of existing law.” Id. § 70-a(1)(a). The statute states
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`that “other compensatory damages may be recovered” but only upon the “additional
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`demonstration” that the action was commenced or continued for the “purpose of harassing,
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`intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition
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`or association rights.” Id. § 70-a(1)(b). Finally, punitive damages may be recovered if it is
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`demonstrated that the underlying suit “was commenced or continued for the sole purpose” of
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`achieving the objectives listed in subsection (b). Id. § 70a-(1)(c).
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`Under N.Y. Civ. Rights Law § 76-a, an “action involving public petition and
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`participation” is one brought by a “public applicant or permittee” that is “materially related to
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`any efforts of the defendant to report on, comment on, rule on, challenge or oppose” the
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`application or permission. Id. § 76-a(1)(a). A “public applicant or permittee” is someone who
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`has “applied for or obtained a permit . . . or other entitlement for use or permission to act from
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`any government body . . . .” Id. § 76-a(1)(b).
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`The New York Court of Appeals gave some background on the anti-SLAPP statute in
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`600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130 (1992), cert. denied, 508 U.S. 910
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`(1993), shortly after it was enacted. As the court explained:
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`In recent years, there has been a rising concern about the use of civil litigation,
`primarily defamation suits, to intimidate or silence those who speak out at public
`meetings against proposed land use development and other activities requiring
`approval of public boards. Termed SLAPP suits—strategic lawsuits against
`public participation—such 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 . . . In response, New York State enacted a law specifically aimed at
`broadening the protections of citizens facing litigation arising from their public
`petition and participation (see, L.1992, ch. 767).
`
`Id. at 137 n.1. Because the anti-SLAPP law is in derogation of common law, it must be
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`“strictly” and “narrowly”construed. Hariri v. Amper, 51 A.D.3d 146, 151 (1st Dep’t 2008);
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`Guerrero v. Carva, 10 A.D.3d 105, 117 (1st Dep’t 2004); Silvercorp Metals Inc. v. Anthion
`
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`Mgmt. LLC, 36 Misc.3d 660, 666 (Sup. Ct. N.Y. Co. 2012).
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`III. DISCUSSION
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`The parties have each raised a number of issues that they contend entitle them to
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`summary judgment. For the reasons described in section III.A below, we conclude that
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`Egiazaryan is entitled to summary judgment on the issue of whether his defamation suit could be
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`“supported by a substantial argument for the extension, modification or reversal of existing law”
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`under N.Y. Civ. Rights Law § 70-a(1)(a). For this reason alone, the counterclaim should be
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`dismissed.
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`Further, even assuming arguendo that Zalmayev could show that Egiazaryan’s suit both
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`lacked 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,” see id., Egiazaryan would
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`still be entitled to summary judgment because, as described in section III.B below: (1) Zalmayev
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`would at most be entitled to attorney’s fees and costs (rather than compensatory or punitive
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`damages) given that he cannot show that Egiazaryan had a motive to harass; and (2) the Court
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`should exercise its discretion not to award attorney’s fees and costs to Zalmayev.
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`A. The Threshold Showing Required Under the anti-SLAPP Statute
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`1. Legal Standard
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`To obtain any relief under the anti-SLAPP statute, Zalmayev must demonstrate that the
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`suit here not only was commenced or continued without a substantial basis in fact and law but
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`also that it “could not be supported by a substantial argument for the extension, modification or
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`reversal of existing law.” Id. § 70-a(1)(a) (emphasis added). We will assume arguendo that
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`Zalmayev could show that the suit lacked a “substantial basis in fact and law.” Accordingly, we
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`turn to the question of whether he has shown that the suit could not be “supported by a
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`substantial argument for the extension, modification or reversal of existing law.” While we are
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`not aware of any cases that interpret the meaning of this phrase, we do not believe that the
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`legislature intended to require an anti-SLAPP claimant to demonstrate that the SLAPP suit was
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`legally frivolous. We reach this conclusion not only based on our reading of the text of the
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`statute but also because there exists a separate standard that governs in New York as to when
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`litigation conduct is frivolous. Under this standard, litigation conduct is “frivolous” if, inter alia,
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`“it is completely without merit in law and cannot be supported by a reasonable argument for an
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`extension, modification or reversal of existing law.” 22 N.Y.C.R.R. § 130-1.1(c)(1). We believe
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`the use of the term “substantial” in the anti-SLAPP statute rather than “reasonable” reflects the
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`legislature’s intent to impose a standard more favorable to the anti-SLAPP claimant.
`
`As to the parties’ arguments on the standard’s application here, we reject Zalmayev’s
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`argument that if a plaintiff does not argue in opposing a motion to dismiss that “the complaint
`
`was supported by a substantial argument for the extension, etc. of existing law,” the defendant
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`automatically demonstrates the absence of such a “substantial argument” merely by securing
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`dismissal of the complaint under Fed. R. Civ. P. 12(b)(6). See Def. Nov. 11 Letter at 4. This
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`argument is premised on the application of a state rule regarding motions to dismiss in SLAPP
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`suits that was not advanced by the parties or relied upon by the court in either Egiazaryan I or
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`Egiazaryan II. Under New York law, a motion to dismiss a SLAPP suit must be granted unless
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`the plaintiff shows either that the cause of action “has a substantial basis in law” or that it is
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`“supported by a substantial argument for an extension, modification or reversal of existing law.”
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`N.Y. C.P.L.R. § 3211(g). Zalmayev argues, see Def. Nov. 11 Letter at 5, that the granting of a
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`motion to dismiss under section 3211(g) means that the defendant has necessarily made the
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`demonstration required by N.Y. Civ. Rights Law § 70–a(1)(a).
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`The most obvious flaw in this argument is that the substantive standard contemplated by
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`N.Y.C.P.L.R. § 3211(g) was never applied here. Instead, both of Zalmayev’s motions to
`5
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`dismiss relied exclusively on the standard contained in Fed. R. Civ. P. 12(b)(6); that is, whether
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`the complaint stated a claim upon which relief could be granted. See Notice of Motion to
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`Dismiss the Complaint Pursuant to Rule 12(b)(6), filed June 21, 2011 (Docket # 15); Notice of
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`Motion to Dismiss the Amended Complaint Pursuant to Rule 12(b)(6), filed Mar. 30, 2012
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`(Docket # 117). Judge Castel’s decisions similarly refer only to the standard set forth in Rule
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`12(b)(6). Egiazaryan I, 2011 WL 6097136, at *3; Egiazaryan II, 880 F. Supp. 2d at 502. Thus,
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`the two grants of dismissal meant only that Egiazaryan had not stated a claim for relief. They
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`did not indicate whether Egiazaryan’s claims were supported by substantial arguments seeking
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`the extension, modification or reversal of existing law. In accordance with the mandate of N.Y.
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`Civ. Rights Law § 70–a(1)(a), however, it is Zalmayev’s burden to “demonstrat[e]” on this
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`motion that the claims in this case could not have been supported “by a substantial argument for
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`the extension, modification or reversal of existing law.”
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`We also reject Zalmayev’s related contention that, “[t]o allow Egiazaryan to argue now
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`that his complaint could be supported by an argument for the extension, etc., of existing
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`law . . . would be to allow Egiazaryan to relitigate the motion to dismiss the amended
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`complaint.” Nov. 11 Letter at 4. According to Zalmayev, if the Court were to determine that the
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`amended complaint “w[as] supported by a substantial argument . . . then it would follow that the
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` Indeed, even if a party had sought application of the state standard, it is doubtful this
`5
`Court would have accepted the invitation to do so. See generally Zurich Am. Ins. Co. v.
`Pillsbury Co., 264 F. Supp. 2d 710, 711 (N.D. Ill. 2003) (“There is no such thing as a motion to
`dismiss under [a state dismissal standard] in [federal] court; there are only motions to dismiss
`under Federal Rule 12(b).”).
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`amended complaint should be reinstated long after it was dismissed. That would be absurd.” Id.
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`Again, Zalmayev incorrectly assumes that the decisions on the motions to dismiss resolved the
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`applicability of the “substantial argument” standard contained in N.Y. Civ. Rights Law
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`§ 70-a(1)(a). The inquiry