Opinion
15779-15779A Index No. 150616/21 Case Nos. 2021-02909, 2021-02910
04-21-2022
Richard ROBBINS, Plaintiff–Appellant, v. 315 WEST 103 ENTERPRISES LLC, et al., Defendants–Respondents.
Richard Robbins, appellant pro se. Koffsky Schwalb LLC, New York (Steven A. Weg of counsel), for respondents.
Richard Robbins, appellant pro se.
Koffsky Schwalb LLC, New York (Steven A. Weg of counsel), for respondents.
Manzanet–Daniels, J.P., Kern, Singh, Kennedy, Mendez, JJ.
Judgment, Supreme Court, New York County (Paul A. Goetz, J.), entered July 14, 2021, dismissing the complaint and awarding costs to defendants, and bringing up for review an order, same court and Justice, entered June 8, 2021, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
In 2017, defendants brought an action against plaintiff asserting claims for defamation and related torts arising from five 311 calls he allegedly made to complain to the Department of Buildings (DOB) about defendants’ construction project next door. Plaintiff allegedly complained that defendants violated stop work orders, removed a posted DOB order, and caused damage to his property. That action was discontinued on or about November 13, 2017 (see 315 W. 103 Enters. LLC v. Robbins, 171 A.D.3d 466, 95 N.Y.S.3d 800 [1st Dept. 2019], lv dismissed 34 N.Y.3d 1151, 119 N.Y.S.3d 427, 142 N.E.3d 110 [2020] ). Plaintiff commenced this action on January 19, 2021, seeking costs and attorneys’ fees, and compensatory and punitive damages, claiming that defendants’ prior action violated the statutory bar on "strategic lawsuits against public participation" (anti-SLAPP), as it involved his "public petition and participation" ( Civil Rights Law § 70–a[1][a]–[c] ).
Supreme Court correctly found that plaintiff's 311 calls, as alleged in the complaint in this action, were not "materially related to any efforts of [plaintiff] to report on, comment on, rule on, challenge or oppose" defendants’ "application or permission" (former Civil Rights Law § 76–a[1][a] ). The complaint failed to identify "the application or permit being challenged or commented on," or that plaintiff's "communications," i.e., the 311 calls, were "substantially related to such application or permit" ( Guerrero v. Carva, 10 A.D.3d 105, 117, 779 N.Y.S.2d 12 [1st Dept. 2004] ; accord Bridge Capital Corp. v. Ernst, 61 A.D.3d 496, 496, 877 N.Y.S.2d 51 [1st Dept. 2009], lv denied 12 N.Y.3d 715, 2009 WL 1851281 [2009] ). Instead, the alleged calls were general complaints concerning the building construction next door (see LSG 105 West 28th LLC v. Sinclair, 2020 N.Y. Slip Op. 31764[U], *8, 2020 WL 3000536 [Sup. Ct., N.Y. County 2020] [311 calls complained about "failure to receive demolition notice, unsafe crane operation, failure to safeguard, and noise"]).
We reject plaintiff's contention that the amendments to the anti-SLAPP statutes, effective November 10, 2020, apply to defendants’ prior action, as the new law does not contain a clear expression of the legislative purpose for their retroactive application (see Gottwald v. Sebert, 203 A.D.3d 488, ––– N.Y.S.3d ––––, 2022 N.Y. Slip Op. 01515 [1st Dept. 2022] ).
We have considered plaintiff's remaining contentions and find them unavailing.