Gottwald Et Al V Sebert
Gottwald Et Al V Sebert
Gottwald Et Al V Sebert
NYSCEF DOC. NO. 19 Supreme Court of the State of New York RECEIVED NYSCEF: 03/10/2022
-against-
Mitchell Silberberg & Knupp LLP, New York (Christine Lepera of counsel), for
appellants.
O’Melveny & Myers LLP, New York (Leah Godesky of counsel), for respondent.
Carter Ledyard & Milburn LLP, New York (Alan S. Lewis and John J. Walsh of counsel),
for Samuel D. Isaly, amicus curiae.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or
about June 30, 2021, which granted defendant’s motion for a ruling that Civil Rights
Law § 76-a applies to plaintiffs’ defamation claims against her and for leave to assert a
counterclaim against plaintiffs under Civil Rights Law § 70-a, unanimously reversed, on
Contrary to the decision of the motion court and in other nonbinding decisions
(see e.g. Palin v New York Times Co., 510 F Supp 3d 21 [SD NY 2020]), there is
insufficient evidence supporting the conclusion that the legislature intended its 2020
(see Civil Rights Law § 70 et seq.) to apply retroactively to pending claims such as the
The Court of Appeals has stated, in general terms, that “ameliorative or remedial
purpose” (Matter of Marino S., 100 NY2d 361, 370-371 [2003], cert denied 540 US 1059
[2003]), and this Court, in limited circumstances, has found the requisite legislative
intent to apply a statute retroactively based on the remedial nature of the statute (see
e.g. Matter of Jaquan L. [Pearl L.], 179 AD3d 457 [1st Dept 2020] [retroactive
Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community
Renewal (35 NY3d 332 [2020]), the Court of Appeals noted that the United States
Supreme Court had previously limited “the continued utility of the tenet that new
‘remedial’ statutes apply presumptively to pending cases” (35 NY3d at 365), and it has
overcome the strong presumption of prospectivity since the term may broadly
encompass any attempt to supply some defect or abridge some superfluity in the former
law” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 [1998]
[internal quotation marks omitted]). In addition, where, as here, the fact that the
legislature has provided that amendments shall “take effect immediately,” even though
that may evince a “sense of urgency,” the meaning of that phrase is, at best, “equivocal”
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in an analysis of retroactivity (Majewski, 91 NY2d at 583; see Aguaiza v Vantage
In light of the above principles and the factual evidence that the amendments to
New York’s anti-SLAPP law were intended to better advance the purposes of the
legislation by correcting the narrow scope of the prior anti-SLAPP law, we find that the
presumption of prospective application of the amendments has not been defeated. The
legislature acted to broaden the scope of the law almost 30 years after the law was
originally enacted, purportedly to advance an underlying remedial purpose that was not
adequately addressed in the original legislative language. The legislature did not specify
that the new legislation was to be applied retroactively. The fact that the amended
statute is remedial, and that the legislature provided that the amendments shall take
effect immediately, does not support the conclusion that the legislature intended
Given the conclusion that the 2020 amendments expanding the scope of Civil
Rights Law § 76-a do not apply retroactively to cover plaintiffs’ pending defamation
claims, the motion seeking a ruling to that effect and for leave to assert a Civil Rights
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Law § 70-a counterclaim premised on plaintiffs’ claims being subject to the anti-SLAPP