Consumer Reviews and Complaint Letters as “Public Interest” Speech Under New York Anti-SLAPP, Supporting Fee Awards for Baseless Defamation Claims

1. Introduction

Biagini Realty v Brightman arises from a soured residential construction transaction brokered by Biagini Realty and performed by Salisbury Operating, Inc., both owned by Paul Biagini. After the defendants (home purchasers) complained that items on a final inspection list remained incomplete months after deed transfer, they hired additional contractors, then posted criticism online and sought governmental consumer assistance. The plaintiffs responded with a defamation-focused lawsuit (including libel per se), and the defendants invoked New York’s expanded anti-SLAPP protections and sought attorneys’ fees.

The key issues were:

• whether the challenged communications were actionable defamatory statements (as opposed to substantial truth or nonactionable opinion);
• whether part of the defamation claim was time-barred;
• whether the communications qualified as “public participation” speech/petitioning under the post-2020 anti-SLAPP framework; and
• whether the plaintiffs’ suit lacked a “substantial basis in fact and law,” justifying a fee award under Civil Rights Law § 70-a.

2. Summary of the Opinion

The Second Department affirmed summary judgment dismissing the defamation claims and affirmed the award of attorneys’ fees under Civil Rights Law § 70-a.

• Limitations: The Better Business Bureau complaint was posted more than one year before suit and was untimely under CPLR 215(3).
• Merits: The Google business profile post and the letter to the Ulster County District Attorney’s Office Division of Consumer Affairs were shown to be either substantially true or nonactionable opinion; plaintiffs failed to raise a triable issue.
• Anti-SLAPP + fees: The court held these communications were made in a public forum and/or constituted protected petitioning concerning a matter of public interest (business practices), and that the action was commenced without basis in law, supporting attorneys’ fees under § 70-a.

3. Analysis

3.1 Precedents Cited (and How They Drove the Result)

The court anchored the defamation analysis in a familiar, elements-based framework and the fact/opinion boundary:

• Bowen v Van Bramer (205 AD3d 674): Quoted for the standard elements of defamation and, critically, for the “pure opinion” rule—opinions implying undisclosed defamatory facts may be actionable, while opinions that disclose their factual basis are not. This directly supported the court’s conclusion that the defendants’ communications were nonactionable opinion or substantially true, defeating falsity.
• Joo Tae Yoo v Choi (210 AD3d 1062): Cited for the elements and for the proposition that defamation per se includes statements tending to injure one’s trade or business. This framed the plaintiffs’ theory (libel per se) while also clarifying the threshold the plaintiffs still had to meet (including falsity).
• Liberman v Gelstein (80 NY2d 429): The Court of Appeals authority reinforcing defamation per se categories and the business-injury principle. It underscored that even if a statement targets business reputation, plaintiffs must still show actionable fact, not protected opinion, and not truth.
• VIP Pet Grooming Studio, Inc. v Sproule (224 AD3d 78): Used on two fronts—(i) the fact/opinion requirement (“only facts are capable of being proven false”), and (ii) the modern anti-SLAPP framework after the 2020 amendments, including “public forum” and broad “public interest.” This case functioned as the doctrinal bridge between defamation analysis and anti-SLAPP consequences.
• Perchuk v Perfect Body Image, LLC (220 AD3d 894): Cited for the contextual method of distinguishing actionable fact from opinion by examining the publication as a whole, its tone, purpose, and context—an approach suited to online consumer commentary.
• Tsamasiros v Jones (232 AD3d 816): Reinforced that “pure opinion” is not actionable “no matter how vituperative,” supporting the court’s willingness to treat sharp consumer critiques as protected when they read as opinion.
• Kasavana v Vela (172 AD3d 1042): Cited for the “pure opinion” principle and the “undisclosed facts” distinction, which is pivotal in review/complaint cases where language often mixes evaluation with referenced experiences.

• Cohen v Cohen (210 AD3d 633): Supported dismissal of the BBB-based defamation claim as untimely under CPLR 215(3), confirming strict one-year treatment for defamation accrual tied to publication timing.
• Landa v Capital One Bank [USA], N.A. (172 AD3d 1052): Cited for the proposition that, once defendants meet their prima facie summary judgment burden, plaintiffs must raise a triable issue of fact. Here, the defendants’ evidentiary package (affidavit, final inspection list, photographs, receipts) shifted the burden; plaintiffs did not carry it.

• Nelson v Ardrey (231 AD3d 179): Cited to describe anti-SLAPP’s purpose—protecting citizen participation in public affairs—and to support the availability/structure of relief (including fees) that deters retaliatory suits. It also supported the recognition of online spaces as public forums.
• Aristocrat Plastic Surgery P.C. v Silva (206 AD3d 26): Used for two key propositions: the “public interest” concept is construed broadly (excluding only “purely private” matters), and internet/social platforms can qualify as “public forums.” This strengthened the court’s conclusion that consumer-facing platforms educating potential customers implicate public interest.
• Golan v Daily News, L.P. (214 AD3d 558): Cited as authority recognizing communications about business practices as matters of legitimate public interest, reinforcing that warnings/information to other consumers fit comfortably within § 76-a’s scope.

3.2 Legal Reasoning

A. The defamation claims failed on three independent tracks

• Statute of limitations (BBB): The court treated the Better Business Bureau complaint as a publication occurring more than one year before suit, rendering that portion of the defamation cause of action time-barred under CPLR 215(3).
• Substantial truth: By submitting concrete documentation (final inspection list, photographs, receipts), defendants established that “various items” were not completed and that defendants incurred costs to finish the work. Because falsity is essential, “substantially true” communications do not support defamation.
• Nonactionable opinion: The court applied the contextual, reader-oriented approach to distinguish factual assertions from evaluations. Where the defendants’ communications reflected consumer judgment based on disclosed experiences (the incomplete work and costs), they were treated as “pure opinion” rather than provably false fact.

B. Anti-SLAPP applied: Google business profile + consumer-affairs letter = protected public participation

The court applied the post-2020 anti-SLAPP definition of “action involving public participation,” focusing on:

• Public forum speech: The Google business profile post was treated as a communication “in a place open to the public or a public forum,” akin to the online-forum reasoning in Nelson v Ardrey and Aristocrat Plastic Surgery P.C. v Silva.
• Petitioning activity: The letter to the Division seeking reimbursement functioned as an effort to invoke consumer-protection mechanisms—conduct in furtherance of petitioning rights.
• Broad “public interest”: The communications concerned the plaintiffs’ alleged business practices—information “others who might transact business” would find relevant—placing them within the broadly construed “public interest” concept emphasized in VIP Pet Grooming Studio, Inc. v Sproule and Aristocrat Plastic Surgery P.C. v Silva.

C. Fee shifting under Civil Rights Law § 70-a

Having found anti-SLAPP coverage, the court affirmed fees because defendants established the suit was “commenced or continued without a substantial basis in fact and law.” The decision ties that conclusion to the legal defects identified: time-barred publication; lack of falsity due to substantial truth; and nonactionable opinion.

3.3 Impact

• Strengthened protection for consumer speech: The opinion reinforces that consumer-facing online platforms used to inform potential customers can qualify as “public forums” and that criticism about a business’s work quality or follow-through can be an “issue of public interest” under the expanded anti-SLAPP statute.
• Higher litigation risk for defamation plaintiffs targeting reviews: Even where a business alleges reputational harm (including “libel per se”), plaintiffs must confront not only traditional defenses (truth/opinion) but also anti-SLAPP’s fee-shifting consequences if the action lacks substantial legal and factual grounding.
• Practical deterrence of retaliatory suits: By affirming attorneys’ fees, the court signals that defamation suits aimed at silencing consumer complaints—especially those grounded in documented experiences—may trigger financial repercussions beyond dismissal.

4. Complex Concepts Simplified

• “Defamation” (basic elements): A plaintiff must show a false statement, published to others without privilege, with at least negligence, that causes harm (or is so serious it is “per se” harmful).
• “Defamation per se”: Certain statements are considered inherently damaging—here, statements that tend to injure someone’s business or trade. But “per se” does not remove the need to show the statement is actionable fact and false.
• Fact vs. opinion: Courts look at the whole context—tone, purpose, and how an ordinary reader would understand it. Opinions (“in my experience, they didn’t finish the work”) are generally protected; false factual claims (“they never obtained permits,” if untrue and stated as fact) can be actionable.
• “Substantially true”: A statement need not be perfectly precise; if the “gist” is true (e.g., work remained incomplete and the homeowner paid others to finish it), defamation fails because falsity is missing.
• Anti-SLAPP (New York, post-2020): Designed to stop lawsuits meant to punish or chill speech/petitioning. It applies broadly to public-forum communications and other speech/petitioning related to “public interest” (anything not purely private).
• Clear and convincing / reckless disregard (Civil Rights Law § 76-a[2]): In covered cases, a plaintiff seeking damages must meet a heightened showing (knowledge of falsity or reckless disregard) when truth/falsity is material—raising the bar beyond ordinary negligence.
• Attorneys’ fees (Civil Rights Law § 70-a): If the suit is an “action involving public petition and participation” and is brought “without a substantial basis in fact and law,” the defendant may recover fees—turning dismissal into an affirmative financial remedy.

5. Conclusion

Biagini Realty v Brightman confirms that documented consumer complaints posted on a business’s public online profile and communications seeking help from consumer-affairs authorities can constitute protected public participation on matters of “public interest” under New York’s expanded anti-SLAPP law. The decision also underscores that defamation plaintiffs must overcome not just the classic barriers of truth and opinion, but also anti-SLAPP’s fee-shifting mechanism when the case lacks a substantial legal and factual basis. In practical terms, the opinion strengthens the legal safety net for consumer speech and increases the cost of using defamation litigation as a reputational counterattack to public reviews and complaint letters.