United States District Court, S.D. New York
MEMORANDUM AND ORDER ADOPTING IN PART AND MODIFYING REPORT AND RECOMMENDATION
P. KEVIN CASTEL, District Judge.
The Court has reviewed the thorough Report and Recommendation ("R & R") of Magistrate Judge Gabriel W. Gorenstein recommending the grant of the motion for summary judgment of plaintiff Ashot Egiazaryan dismissing the counterclaim of defendant Peter Zalmayev and the denial of Zalmayev's cross motion for summary judgment. (Docket No. 249, 2013 WL 6486258, at *1-6.) The Court has considered Zalmayev's objections and reviewed the matter de novo.
The Court adopts the conclusion of the R & R, and modifies the reasoning of the R & R only insofar as the following: (1) supplying an additional ground for the disposition of the motions, which is that the plaintiffs claims had a substantial basis in fact and law; and (2) declining to reach alternative grounds presented in sections III.B and III.C of the R & R, that this Court should exercise its discretion to decline to award attorney's fees, costs, and damages. The Court assumes familiarity with the R & R and this Court's two prior opinions. Egiazaryan v. Zalmayev, 11 Civ. 2670 (PKC), 2011 WL 6097136 (S.D.N.Y. Dec. 7, 2011) ("Egiazaryan I"), Egiazaryan v. Zalmayev , 880 F.Supp.2d 494 (S.D.N.Y. 2012) ("Egiazaryan II").
STANDARD OF REVIEW
In reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). In the event that a party files objections to the magistrate judge's recommendations, district courts conduct a de novo review of those matters to which a party filed an objection. 28 U.S.C. § 636(b)(1)(C).
THE REPORT AND RECOMMENDATION
The R & R assumes, arguendo, that Zalmayev could demonstrate that Egiazaryan's action lacked a substantial basis in fact and law, and analyzes whether Egiazaryan's complaint could be supported by a substantial argument for the extension, modification or reversal of existing law. The R & R concludes that Egiazaryan's action could be supported by a substantial argument for the extension, modification or reversal of existing law. The R & R also recommends that Zalmayev should not be entitled to compensatory or punitive damages, and, that, even if Zalmayev demonstrated that Egiazaryan's action lacked both a substantial basis in law and fact and a substantial argument for the extension, modification or reversal of existing law, that this Court should exercise its discretion not to award attorney's fees and costs to Zalmayev.
OBJECTIONS TO THE R & R
Zalmayev identifies and objects to thirteen distinct conclusions of the R & R. In sum, he objects to the R & R's conclusions that the complaint could be supported by a substantial argument for the extension, modification or reversal of existing law, that Egiazaryan has no burden on this motion to demonstrate that the complaint is supported by a substantial basis in fact and law or a substantial argument for the extension, modification or reversal of existing law, and that the Court should exercise its discretion to not award attorney's fees.
I. Egiazaryan's Lawsuit Falls within the Definition of a SLAPP Suit under New York Law
As this Court found in Egiazaryan I, Egiazaryan is a "public applicant or permittee" within the meaning of Civ. Rights Law § 76-a(1)(b) and the complaint is materially related to Zalmayev's alleged efforts to "comment on, ... challenge or oppose" Egiazaryan's asylum application. Egiazaryan I, 2011 WL 6097136, at *11-12. Accordingly, this action falls within the definition of a SLAPP suit.
II. Application of N.Y. C.P.L.R. 3211(g) to the Motion to Dismiss
Motions to dismiss SLAPP claims brought in New York state courts are decided under N.Y. C.P.L.R. § 3211(g), which provides that:
A motion to dismiss based on [N.Y. C.P.L.R. § 3211(a)(7)], in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in [N.Y. Civ. Rights Law § 76-a(1)(a)] shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in ...