In Friday's decision in Vitagliano v. Weiner, by N.Y. appellate judges Gerald Whalen, John Curran, Donald Greenwood, and Lynn Keane, Vitagliano sued alleging that Weiner had sexually assaulted her; Weiner counterclaimed "for defamation premised on a social media 'story' posted by [Vitagliano] in which she asserted that defendant 'is a rapist.'" Vitagliano tried to get Weiner's counterclaim dismissed early, under New York's anti-SLAPP statute, which is designed to quickly dispose of legally insufficient claims based on speech on matters of public concern. No, says the appellate court:
Initially, we note that the parties do not dispute on appeal that the "counterclaim subject to the motion is an action involving public petition and participation …," i.e., one subject to the protections of New York's anti-SLAPP statutes. Thus, as relevant here, the limited issue before this Court is whether defendant, as "the party responding to the motion[,] demonstrate[d] that the cause of action has a substantial basis in law." …
The court concluded that under New York procedure, a defamation case can proceed (despite an anti-SLAPP motion) if there's a "substantial basis" for the underlying defamation claim, with no need to show "clear and convincing evidence" at that stage of the litigation. And the court continues,
