Bremner v. Bush: Social-Media Defamation, Documentary Evidence, Anti‑SLAPP Retroactivity, and the Single‑Motion Rule

I. Introduction

Bremner v. Bush, 2025 NY Slip Op 07271 (App Div 2d Dept, Dec. 24, 2025), is a significant decision at the intersection of New York defamation law, motion practice under CPLR 3211, and the scope of New York’s anti‑SLAPP protections. The case arises from Facebook posts accusing the individual plaintiff, Jonathan Bremner, of sexual assault, and includes claims by his associated business entities, Lucid Studios, LLC and an unincorporated entity, Robyn Sky.

The Appellate Division, Second Department, affirms two orders of the Supreme Court, Kings County, which largely denied the defendant’s pre‑answer motions to dismiss. In doing so, the court:

Reaffirms the elements of defamation and how a plaintiff can plead malice to overcome a qualified “common‑interest” privilege.
Clarifies that emails, text messages, and social‑media posts (including Facebook posts) do not qualify as “documentary evidence” under CPLR 3211(a)(1).
Limits the retroactive reach of New York’s 2020 anti‑SLAPP amendments, holding that they do not apply where the suit did not fall within the scope of the pre‑amendment statute.
Strictly enforces the CPLR 3211(e) “single motion rule,” barring a second pre‑answer CPLR 3211 motion on new grounds against one of the plaintiffs.

Taken together, Bremner v. Bush is especially important for defamation cases involving social‑media accusations, for the treatment of online communications at the pleading stage, and for litigation strategy in early motion practice.

II. Background and Procedural History

A. Parties and Claims

The plaintiffs are:

Jonathan Bremner – an individual allegedly accused by the defendant of sexual assault.
Lucid Studios, LLC – a limited liability company associated with Bremner.
Robyn Sky – described as an unincorporated business entity.

The defendant, Charlotte Bush, allegedly made “numerous defamatory statements” about Bremner on Facebook, accusing him of sexually assaulting her. On October 25, 2018, the plaintiffs commenced an action asserting causes of action for:

Defamation,
Libel per se, and
Slander per se.

Although the opinion does not quote the precise language of the Facebook posts, accusations of sexual assault in New York generally fall within defamation per se because they impute the commission of a serious crime.

B. The Defendant’s Motions

The defendant filed two separate pre‑answer motions under CPLR 3211:

First motion (December 2018) – sought to dismiss the amended complaint pursuant to:
- CPLR 3211(a)(1) – defense based on “documentary evidence”; and
- CPLR 3211(a)(7) – failure to state a cause of action.
Second motion – later moved, inter alia, to dismiss the amended complaint as asserted by Lucid Studios, LLC pursuant to:
- CPLR 3211(a)(3) – lack of legal capacity to sue; and
- CPLR 3211(a)(7) – failure to state a cause of action.

C. Supreme Court’s Orders

The Supreme Court, Kings County (Devin P. Cohen, J.), issued two relevant orders:

Order dated December 18, 2020 – denied that branch of the second motion which sought dismissal of the amended complaint as asserted by Lucid Studios, LLC, under CPLR 3211(a)(3) and (7).
Order dated December 22, 2020 – denied that branch of the first motion seeking dismissal of the amended complaint under CPLR 3211(a)(1) and (7), except for dismissing some particular paragraphs of the amended complaint (not at issue on appeal).

The defendant appealed from both orders. The Appellate Division affirms them “insofar as appealed from,” effectively upholding the continuation of the lawsuit against her.

III. Summary of the Court’s Decision

The Second Department’s core conclusions are:

Defamation pleading sufficient; common‑interest privilege overcome at this stage.
The plaintiffs adequately alleged that the defendant made false statements of fact with common‑law malice, sufficient to overcome any qualified “common‑interest” privilege, and thus stated viable causes of action for defamation, libel per se, and slander per se. The complaint therefore survives a motion to dismiss under CPLR 3211(a)(7).
Social‑media communications are not “documentary evidence” under CPLR 3211(a)(1).
Emails, text messages, and Facebook messages and posts submitted by the defendant do not qualify as “documentary evidence” for purposes of CPLR 3211(a)(1) and therefore cannot be used at this stage to “utterly refute” the complaint. The CPLR 3211(a)(1) branch was properly denied.
2020 anti‑SLAPP amendments do not apply retroactively here.
The action, commenced in 2018, did not fall within the narrow scope of the former anti‑SLAPP statute (which applied only to public applicants and permittees). Because the defendant was not a public applicant or permittee, the 2020 anti‑SLAPP amendments do not retroactively apply.
Second CPLR 3211 motion barred by the “single motion rule.”
The defendant’s second motion, seeking to dismiss the complaint as asserted by Lucid Studios, LLC on alternative CPLR 3211 grounds, violated the single‑motion rule in CPLR 3211(e). That branch of the second motion was properly denied as procedurally barred.
Remaining arguments lack merit.
The court disposes of the defendant’s other contentions summarily, noting they are “without merit.”

IV. Precedents and Authorities Cited

A. Defamation Standards and Qualified Privilege

Greenberg v Spitzer, 155 AD3d 27 (2d Dept 2017)
Cited for both:
- The elements of a defamation claim: a false statement; publication without privilege; fault (at least negligence); and either special harm or defamation per se.
- The liberal standard applied when evaluating pleadings under CPLR 3211(a)(7).
Stone v Bloomberg L.P., 163 AD3d 1028 (2d Dept 2018)
Cited as additional authority on the elements of defamation under New York law.
Ferrara v Esquire Bank, 153 AD3d 671 (2d Dept 2017)
Provides the statement of the “common‑interest” qualified privilege: communications between persons who share a common interest in the subject matter are privileged, absent malice.
Laguerre v Maurice, 192 AD3d 44 (2d Dept 2020)
Clarifies that a plaintiff may defeat the common‑interest privilege by pleading:
- Common‑law malice (spite or ill will), or
- Actual malice (knowledge of falsity or reckless disregard for truth).
Also cited for the proposition that properly pleaded malice is sufficient to overcome that privilege at the pleading stage.
Kamchi v Weissman, 125 AD3d 142 (2d Dept 2014)
Another major Second Department case on defamation and the malice required to pierce qualified privilege.

B. CPLR 3211(a)(7): Pleading Sufficiency and Use of Evidentiary Material

Davidoff v Kaplan, 217 AD3d 918 (2d Dept 2023)
Restates the rule that when a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, the test becomes whether the plaintiff has a cause of action, not merely whether the plaintiff has stated one. Dismissal is inappropriate unless the defendant shows that a material fact alleged by the plaintiff “is not a fact at all” and that there is no significant dispute.
Tsamasiros v Jones, 232 AD3d 816 (2d Dept 2024)
Reinforces the same standard as in Davidoff concerning the use of evidentiary materials on a 3211(a)(7) motion.
Rosas v Morales, 235 AD3d 678 (2d Dept 2024)
Applies the standard that a complaint should not be dismissed unless the defendant demonstrates that a key factual allegation is unfounded as a matter of law.

C. CPLR 3211(a)(1): What Counts as “Documentary Evidence”

Stamp Rite Tool & Die Corp. v Branded Leather, Inc., 236 AD3d 1076 (2d Dept 2024)
Notes that CPLR 3211(a)(1) allows dismissal where a defense is “founded on documentary evidence.”
Silber Inv. Props., Ltd. v BJG Islandia Realty, LLC, 236 AD3d 953 (2d Dept 2024)
Reiterates that such a motion can be granted only where documentary evidence “utterly refutes” the plaintiff’s allegations and conclusively establishes a defense as a matter of law.
Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 (2002)
The leading Court of Appeals case on CPLR 3211(a)(1), establishing the “utterly refutes” and “conclusively disposes” standard.
Kalaj v 21 Fountain Place, LLC, 169 AD3d 657 (2d Dept 2019)
Holds that letters, emails, and affidavits are not “documentary evidence” within the meaning of CPLR 3211(a)(1).
Cajahuanca v City of New York, 231 AD3d 1006 (2d Dept 2024)
Confirms that emails and similar communications do not qualify as documentary evidence for CPLR 3211(a)(1) purposes.

D. Anti‑SLAPP Retroactivity

VIP Pet Grooming Studio, Inc. v Sproule, 224 AD3d 78 (2d Dept 2023)
The key authority on the retroactivity of New York’s 2020 anti‑SLAPP amendments. It held:
- The amendments are not retroactive unless the action was already within the scope of the prior anti‑SLAPP statute when commenced.
- The pre‑amendment statute covered only “public applicants and permittees.”
This case is directly applied in Bremner v. Bush.

E. The Single Motion Rule – CPLR 3211(e)

Newlands Asset Holding Trust v Vasquez, 218 AD3d 786 (2d Dept 2023)
Summarizes CPLR 3211(e): before serving a responsive pleading, a party may make a motion on one or more CPLR 3211(a) grounds, but “no more than one such motion shall be permitted.”
Bailey v Peerstate Equity Fund, L.P., 126 AD3d 738 (2d Dept 2015)
Clarifies that the single‑motion rule prohibits:
- Repetitive CPLR 3211 motions, and
- Subsequent CPLR 3211 motions raising alternative grounds that could have been raised earlier.

V. Legal Reasoning in Detail

A. Defamation, Libel Per Se, Slander Per Se and the Common‑Interest Privilege

The court reiterates the standard elements for defamation under New York law:

A false statement about the plaintiff;
Publication to a third party without privilege or authorization;
Fault (at least negligence); and
Either:
- Special harm (specific economic or pecuniary damage), or
- Statements that constitute defamation per se.

“Defamation per se” includes, among other categories, statements:

Charging the plaintiff with a serious crime; or
Tending to injure the plaintiff in their trade, business, or profession.

Accusing someone of sexual assault fits comfortably within the “serious crime” category, so the plaintiffs can proceed without pleading special damages.

The defendant apparently invoked a qualified “common‑interest” privilege by arguing that the Facebook communications were made among individuals sharing a common interest in the subject (such as safety or mutual acquaintances). Under Ferrara v Esquire Bank and Laguerre v Maurice, such a privilege protects communications made in good faith upon a subject in which both speaker and listener share a legitimate interest.

However, this privilege can be defeated by a showing of malice:

Common‑law malice – spite, hatred, ill will, or a desire to harm the plaintiff; or
Actual malice – knowledge that the statement was false or serious doubts about its truth.

The court holds that the amended complaint sufficiently alleges malice, citing Laguerre and Kamchi, and thus adequately pleads facts that, if true, would overcome the common‑interest privilege at this stage. Importantly, at the motion‑to‑dismiss stage, the court does not decide whether malice actually existed; it only asks whether the plaintiffs have alleged it with sufficient factual support to proceed to discovery.

B. CPLR 3211(a)(7): Liberal Construction of the Complaint

A CPLR 3211(a)(7) motion tests the legal sufficiency of the pleading, not whether the plaintiff will ultimately prevail. The court must:

Give the complaint a liberal construction;
Accept as true the facts alleged; and
Grant the plaintiff the benefit of every favorable inference.

When, as here, the court considers evidence beyond the four corners of the complaint but does not convert the motion to one for summary judgment, the focus shifts (under Davidoff and Tsamasiros) to whether the plaintiff has a cause of action. Dismissal is appropriate only if the defendant shows that:

a material fact alleged “is not a fact at all,” and
there is no significant dispute as to that alleged fact.

In Bremner v. Bush, the defendant failed to meet this high bar. The materials she submitted did not show that key allegations—such as falsity of the accusations or malice—were “not facts at all.” Consequently, the Appellate Division agrees that the defamation, libel per se, and slander per se claims should not be dismissed at the pleading stage.

C. CPLR 3211(a)(1): What Counts as “Documentary Evidence” and Why Facebook Posts Don’t Qualify

Under CPLR 3211(a)(1), a defendant can move to dismiss a claim where a defense is “founded upon documentary evidence.” To succeed, the defendant must submit evidence that:

Qualifies as “documentary” within the meaning of the statute, and
“Utterly refutes” the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

New York courts construe “documentary evidence” narrowly. It typically includes:

Judicial records and court orders;
Contracts, deeds, and legally operative instruments;
Official documents whose authenticity is unquestioned.

By contrast, Second Department precedent (Kalaj, Cajahuanca) has consistently held that:

Letters,
Emails,
Text messages, and
Affidavits

do not qualify as “documentary evidence” for purposes of CPLR 3211(a)(1).

In Bremner v. Bush, the defendant submitted:

Emails,
Text messages, and
Facebook messages and posts.

The Appellate Division holds that these materials are not documentary evidence under CPLR 3211(a)(1) and therefore cannot be used to “utterly refute” the complaint at this stage. Without qualifying documentary evidence, the 3211(a)(1) branch of the motion necessarily fails.

This is doctrinally important: even where social‑media content is central to a defamation dispute, those posts are treated, for pleading-stage purposes, like other forms of informal communication rather than formal documentary proof.

D. Anti‑SLAPP: Limited Retroactivity of the 2020 Amendments

New York’s anti‑SLAPP (Strategic Lawsuit Against Public Participation) law—primarily Civil Rights Law §§ 70‑a and 76‑a, and associated CPLR provisions—was significantly expanded by amendments effective in 2020. Those amendments:

Broadened the definition of protected “public petition and participation,”
Imposed an “actual malice” standard for a wider range of public‑interest speech,
Provided for attorney’s fees and damages for successful defendants, and
Added procedural protections (including burden‑shifting on certain motions).

The key question in Bremner is whether those 2020 amendments apply retroactively to a defamation suit filed in 2018 concerning social‑media accusations of sexual assault by a private individual.

The court follows its earlier decision in VIP Pet Grooming Studio, Inc. v Sproule, which held:

The 2020 amendments are not universally retroactive.
They apply retroactively only if the lawsuit, when commenced, was already within the narrow scope of the former anti‑SLAPP statute.
The pre‑amendment statute was limited to “public applicants and permittees” (for example, persons or entities seeking zoning or similar governmental approvals).

In Bremner v. Bush, the defendant was not a public applicant or permittee at the time the lawsuit was commenced. Accordingly:

The action did not fall within the pre‑amendment anti‑SLAPP statute.
The 2020 amendments therefore do not apply retroactively to this case.

The defendant’s argument that the anti‑SLAPP amendments protect her social‑media statements is thus rejected as “without merit.” This ensures that the case proceeds under ordinary defamation principles rather than under the enhanced anti‑SLAPP regime.

E. The Single Motion Rule: CPLR 3211(e) and Strategic Consequences

CPLR 3211(e) contains the so‑called “single motion rule,” providing that:

“At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in [CPLR 3211(a)], and no more than one such motion shall be permitted.”

As interpreted in Newlands Asset Holding Trust v Vasquez and Bailey v Peerstate Equity Fund, L.P., the rule:

Forbids repetitive 3211 motions against the same pleading, and
Bars a second 3211 motion raising new or alternative grounds that could have been raised in the first motion.

In Bremner v. Bush, the defendant:

First moved under CPLR 3211(a)(1) and (7) to dismiss the amended complaint.
Later filed a second motion under CPLR 3211(a)(3) and (7) to dismiss the complaint as asserted by Lucid Studios, LLC, on different grounds (including lack of capacity to sue).

The Appellate Division holds that this violates the single motion rule:

The second motion constitutes an impermissible attempt to raise additional CPLR 3211(a) grounds that could have been asserted with the first motion.
Accordingly, the branch of the second motion seeking dismissal under CPLR 3211(a)(3) and (7) as to Lucid Studios, LLC, is procedurally barred.

This ruling illustrates the tactical hazard for defendants who attempt to stage their pre‑answer motions: if they omit a CPLR 3211(a) ground, they ordinarily cannot revive it in a later motion, even as to only one plaintiff, unless a recognized exception applies (e.g., lack of subject‑matter jurisdiction).

VI. Impact and Implications

A. Defamation Litigation Involving Social‑Media Allegations of Sexual Misconduct

The case underscores that New York courts will allow defamation suits based on online allegations of sexual assault to proceed beyond the pleading stage where plaintiffs:

Allege that the accusations are false;
Plead that the statements were made to third parties, such as via Facebook posts;
Allege negligence or a higher degree of fault; and
Plead facts suggesting malice sufficient to overcome any qualified privilege.

The decision does not decide who is ultimately right or wrong about the underlying events. It simply confirms that where the complaint is sufficiently detailed and alleges malice, the plaintiff is entitled to proceed to discovery and potentially to trial rather than being cut off at the pleading stage.

B. Treatment of Social‑Media Evidence in CPLR 3211(a)(1) Motions

For practitioners, one of the most consequential aspects of Bremner v. Bush is the reaffirmation that:

Emails, text messages, and social‑media posts are not documentary evidence for CPLR 3211(a)(1) purposes.

This has several practical implications:

Defendants cannot rely on such communications to seek early dismissal under 3211(a)(1), even if they believe the communications prove a complete defense.
Instead, those materials may be considered (in a limited way) under CPLR 3211(a)(7) to see whether the plaintiff “has” a cause of action, but they will not be treated as conclusive documentary refutation.
For a truly evidence‑based dismissal, defendants may need to move for summary judgment after issue is joined and discovery has occurred.

Given that much defamation now occurs online, this doctrinal boundary is particularly important: it limits the ability of defendants to resolve disputes at the earliest stage based solely on their own electronic communications.

C. Anti‑SLAPP Strategy After the 2020 Amendments

The decision also matters for the ongoing debate over the reach of New York’s revamped anti‑SLAPP statute. While some courts have applied the 2020 amendments retroactively in certain contexts, the Second Department adheres, through VIP Pet Grooming and now Bremner, to a relatively narrow approach:

If the action was not within the scope of the pre‑amendment statute when commenced, the 2020 anti‑SLAPP amendments generally will not apply retroactively.
Private disputes that do not involve public permit applications or similar governmental proceedings are therefore unlikely to gain retroactive anti‑SLAPP protection in the Second Department.

For defamation defendants sued over pre‑2020 speech in this Department, Bremner signals that arguments invoking the new anti‑SLAPP protections may face substantial headwinds unless the case clearly involved pre‑amendment “public petition and participation” as narrowly defined.

D. Motion Practice and the Single Motion Rule

The case is a stark reminder that:

Defendants must carefully assess all potential CPLR 3211(a) defenses early and consolidate them into a single pre‑answer motion.
Failing to raise grounds such as capacity to sue (CPLR 3211(a)(3)) in that first motion may foreclose their later assertion in a second CPLR 3211 motion.

In practical terms:

Defense counsel should conduct a thorough front‑end evaluation of:
- jurisdictional issues,
- capacity and standing issues,
- pleading sufficiency,
- documentary defenses,
- statutes of limitations, and
- other CPLR 3211(a) grounds.
Where appropriate, they should seek leave of court if a later motion is truly necessary and not merely an attempt to re‑litigate or add grounds that were available earlier.

Bremner illustrates that courts will enforce the single‑motion rule even where the second motion targets only one plaintiff (Lucid Studios) and is framed as raising different grounds, thereby encouraging disciplined, comprehensive early motion practice.

E. Business Entities as Defamation Plaintiffs

The decision also implicitly affirms the viability of defamation claims by business entities:

Lucid Studios, LLC, remains a plaintiff despite the defendant’s attempt to dismiss its claims on capacity and sufficiency grounds.
Because the second motion is barred as to Lucid Studios, the case reinforces that entity plaintiffs enjoy the same procedural protections under the single‑motion rule as individuals.

This is significant for reputation‑based claims by companies whose business interests may be harmed by defamatory statements concerning their principals or operations, especially when those statements are made widely on social media.

VII. Key Concepts Explained (For Non‑Lawyers)

A. Defamation, Libel, Slander, and Defamation Per Se

Defamation is a false statement of fact about a person (or entity), communicated to someone else, that harms the subject’s reputation.
Libel is written or otherwise fixed defamation (including online posts).
Slander is spoken defamation.
Defamation per se refers to statements so obviously harmful (e.g., accusing someone of a serious crime) that the law presumes damage without requiring proof of specific financial loss.

B. Qualified “Common‑Interest” Privilege and Malice

Some communications are protected by a qualified privilege when they are made between people who share a legitimate interest in the topic (for example, employees discussing workplace performance).
This privilege is lost if the plaintiff shows malice, which can mean:
- Spite or ill will (common‑law malice), or
- Knowledge that the statement is false or reckless disregard for whether it is true (actual malice).

C. CPLR 3211 Motions to Dismiss

A motion to dismiss under CPLR 3211 is a request to end a case early, before full discovery or trial.
CPLR 3211(a)(7) questions whether the complaint states a valid legal claim, assuming the alleged facts are true.
CPLR 3211(a)(1) allows dismissal if formal documents (like contracts or official records) conclusively disprove the plaintiff’s claims.
CPLR 3211(a)(3) concerns whether the plaintiff has the legal right (“capacity”) to sue.

D. “Documentary Evidence” Under CPLR 3211(a)(1)

In this context, “documentary evidence” is limited to formal, reliable documents such as contracts, deeds, or court orders.
Emails, text messages, social‑media posts, and affidavits generally do not qualify.

E. Anti‑SLAPP Laws

“SLAPP” stands for Strategic Lawsuit Against Public Participation—lawsuits intended to chill free speech or public participation by burdening speakers with costly litigation.
Anti‑SLAPP laws give defendants extra tools to quickly dismiss such suits and to recover attorney’s fees.
New York broadened its anti‑SLAPP law in 2020, but this decision confirms that those broader protections do not always apply to older cases involving private disputes.

F. The Single Motion Rule

The single motion rule generally allows a defendant only one pre‑answer motion to dismiss under CPLR 3211.
If the defendant forgets or chooses not to raise certain arguments in that first motion, they usually cannot raise them later in a second 3211 motion.

VIII. Conclusion

Bremner v. Bush stands as a comprehensive reaffirmation and application of several core principles in New York civil practice and defamation law:

Pleading sufficiency and malice: Detailed allegations that online accusations of sexual assault are false and malicious, and that they harmed both an individual and related business entities, suffice to survive a CPLR 3211(a)(7) motion, even in the face of asserted qualified privileges.
Limits of CPLR 3211(a)(1): Emails, text messages, and social‑media posts are not “documentary evidence” capable of conclusively defeating a complaint at the pleading stage.
Anti‑SLAPP retroactivity: The 2020 anti‑SLAPP amendments do not retroactively apply to actions that were outside the scope of the prior, narrower statute (limited to public applicants and permittees) when commenced.
Strict enforcement of the single motion rule: Defendants are bound by CPLR 3211(e) to consolidate all available 3211(a) grounds in a single pre‑answer motion; a second motion on alternative grounds, even against a particular plaintiff, will generally be barred.

In the broader legal landscape, Bremner v. Bush is particularly significant for:

Defamation actions involving online accusations and reputational harm;
Practitioners’ understanding of what sort of electronic evidence can (and cannot) support early dismissal;
The continuing, carefully cabined approach of the Second Department to the retroactive reach of New York’s anti‑SLAPP statute; and
The discipline imposed on civil litigants by the single-motion rule in CPLR 3211(e).

As social‑media defamation cases continue to proliferate and anti‑SLAPP defenses are frequently invoked, Bremner v. Bush will likely be cited both for its doctrinal clarity and for its practical guidance on how such disputes should, and should not, be resolved at the pleading stage.