Ottinger v. Tiekert [1]

Former House Representative Richard Ottinger and his wife, June Ottinger, filed a John Doe lawsuit in New York state court over anonymous comments posted on a forum on LoHud.com [2].  In a special proceeding for pre-action discovery [3], the court ordered The Journal News, publisher of LoHud.com [2], to turn over the commenter's identifying information.  The Ottingers then amended the complaint to name Stuart Tiekert as a defendant.

According to court documents [4], Tiekert's comments related to a renovation project the Ottingers were carrying out on their home in Mamaroneck, New York, for which they sought various building permits. Some of the Ottingers' neighbors and local activists attended meetings held in connection with approvals and permits that the Ottingers needed, and one neighbor — Susan McCrory — stated her belief at a televised public meeting that the deed for the Ottinger property was "invalid" and "fraudulent."  The next day, Tiekert posted comments on LoHud suggesting that the Ottingers' deed was fraudulent, and that the Ottingers had used political pressure and bribery to obtain the requisite permits for the project.  The Ottingers sued, maintaining that these statements were false and defamatory. 

Tiekert filed a motion for summary judgment and attorneys' fees under New York's anti-SLAPP statutes [5], N.Y. Civ. Rights Law §§ 70-a, 76-a [6] and N.Y. C.P.L.R. §§ 3211(g), 3212(h) [6]. He also filed a counterclaim alleging that he was entitled to damages based on the Ottingers' filing of a SLAPP.

In August 2009, the court granted Tiekert's motion for summary judgment, finding that the action "involves public petition and participation brought by a public applicant, and which action is materially related to the defendant's efforts to comment on, challenge, or oppose said application," thus triggering the New York anti-SLAPP law.  The court further held that the Ottingers "failed to demonstrate that their action has a substantial basis in fact or law, or is supported by a substantial argument for an extension, modification, or reversal of any existing law" and therefore dismissed the action. 

The court's precise reasoning on the latter point is not clear, but it may relate to the Ottingers' inability to prove by clear and convincing evidence that Tiekert made the statements in question with knowledge of, or reckless disregard for, their falsity, particularly in light of McCrory's public statements the previous day.

The court determined, however, that Tiekert was not entitled to compensatory or punitive damages because it found that the lawsuit was not "brought to harass, intimidate, punish, or otherwise maliciously inhibit the free exercise of speech."  The court also declined to award Tiekert attorneys' fees and costs.