Bremner v. Bush

Summary

The New York Appellate Division, Second Department affirmed orders denying portions of Charlotte Bush's motions to dismiss a defamation action brought by Jonathan Bremner, Lucid Studios, LLC, and Robyn Sky. The court held that the plaintiffs sufficiently alleged defamatory statements and common-law malice overcoming a qualified common-interest privilege, and that emails, text messages, and Facebook materials did not constitute documentary evidence under CPLR 3211(a)(1). The court also held that the 2020 anti-SLAPP amendments did not apply retroactively and that Bush's second dismissal motion was barred by CPLR 3211(e)'s single-motion rule.

Holdings

1. The amended complaint adequately stated defamation claims because the plaintiffs sufficiently alleged that Bush made false statements of fact with common-law malice, which, if proven, could overcome the common-interest qualified privilege.
2. Dismissal under CPLR 3211(a)(1) was properly denied because the emails, text messages, and Facebook messages and posts submitted by the defendant were not documentary evidence within the meaning of the rule and did not utterly refute the complaint.
3. The 2020 anti-SLAPP amendments did not apply retroactively to this action because, when the action commenced, Bush was not a public applicant or permittee and the action was therefore outside the scope of the former anti-SLAPP statute.
4. The second motion to dismiss the amended complaint insofar as asserted by Lucid Studios, LLC, was barred by the single motion rule because the defendant had already made a CPLR 3211 motion and the later motion raised alternative grounds.

Questions Presented

1. Whether the amended complaint adequately pleaded defamation claims, including malice sufficient to overcome the common-interest qualified privilege, under CPLR 3211(a)(7).
2. Whether the materials submitted by the defendant constituted documentary evidence that utterly refuted the amended complaint and established a defense under CPLR 3211(a)(1).
3. Whether the 2020 anti-SLAPP amendments applied retroactively to the action.
4. Whether the defendant's second motion to dismiss claims asserted by Lucid Studios, LLC, was barred by CPLR 3211(e)'s single motion rule.

Disposition

affirmed