"Continuation" Triggers New York’s 2020 Anti‑SLAPP Amendments: First Department Holds Post‑Amendment Motions (Including Reargument) Bring Pre‑2020 Cases Within §§ 70‑a, 76‑a and CPLR 3211(g)

Introduction

In Isaly v. Garde, 2025 NY Slip Op 04960 (1st Dep’t Sept. 11, 2025), the Appellate Division, First Department, resolved a recurring question under New York’s revamped anti‑SLAPP regime: when does a defamation action filed before the 2020 amendments become subject to the amendments’ expanded scope, heightened dismissal standard, and fee‑shifting? The court holds that “continuation” of a lawsuit after the amendments’ effective date—including by filing a post‑amendment motion to reargue—triggers application of Civil Rights Law §§ 70‑a and 76‑a and CPLR 3211(g). In so doing, the First Department aligns its jurisprudence with the Court of Appeals’ analysis in Gottwald v. Sebert and its own decision in Reeves v. Associated Newspapers, narrows the reach of a contrary reading of its recent decision in Eustache, and expressly recognizes that the amended § 76‑a definition of “actions involving public petition and participation” applies prospectively to continued cases.

The case arises from a 2017 STAT article by journalist Damian Garde reporting allegations that plaintiff Samuel D. Isaly, a prominent biotech hedge fund manager, harassed and demeaned women at his firm; the article identified former executive assistant Delilah Burke as a source and included Isaly’s denials. Isaly sued in 2018. After extensive motion practice straddling the 2020 anti‑SLAPP amendments, the Supreme Court ultimately dismissed under CPLR 3211(a)(7) and later under CPLR 3211(g), and set the matter down for fee proceedings under Civil Rights Law § 70‑a. The Appellate Division affirms, holding that Isaly’s August 22, 2022 motion to reargue “continued” the action beyond November 10, 2020 and therefore activated the amended anti‑SLAPP framework.

The decision addresses three core issues: (1) whether the amended § 76‑a definitions and § 70‑a fee‑shifting may be applied to pre‑2020 suits that are “continued” after the effective date; (2) whether the trial court properly dismissed under CPLR 3211(g) and denied additional discovery; and (3) whether the court retained jurisdiction to award § 70‑a fees while an earlier, nonfinal dismissal was on appeal.

Summary of the Opinion

The First Department unanimously affirms an amended order dismissing Isaly’s claims against both Garde and Burke under CPLR 3211(g), denies the request for additional discovery, and confirms that defendants are entitled to seek attorneys’ fees under Civil Rights Law § 70‑a.
Key holding: Although the anti‑SLAPP amendments are prospective, there is “no retroactive effect” when the statute is applied “to the continuation of the action beyond the effective date.” A post‑amendment motion to reargue (filed August 22, 2022) constituted such a continuation.
The court applies the amended § 76‑a(1)(a)’s broadened definition of “an action involving public petition and participation” and the related definition of “public interest,” harmonizing §§ 70‑a, 76‑a, and CPLR 3211(g) under in pari materia principles.
It clarifies that a line in Eustache stating the amended § 76‑a “does not apply retroactively” to motions in pre‑amendment cases does not govern actions that were continued after the effective date; the contrary reading would conflict with Gottwald and Reeves.
On procedure, the court holds Supreme Court retained jurisdiction to grant § 3211(g) dismissal and to move ahead on fee‑shifting while the earlier § 3211(a)(7) dismissal was on appeal, because that order was nonfinal and the anti‑SLAPP issues had been stayed, not resolved.
The appeal from an earlier order was dismissed as superseded by the amended order.

Analysis

Precedents Cited and Their Influence

Gottwald v. Sebert, 40 NY3d 240 (2023): The Court of Appeals construed the 2020 anti‑SLAPP amendments as prospectively applicable and emphasized the phrase “commenced or continued” in Civil Rights Law § 70‑a(1)(a). It held there is no retroactivity problem when the statute is applied to the continuation of an action beyond the effective date. Although Gottwald did not expressly decide whether the amended § 76‑a definitions apply to pending actions, it discussed both § 70‑a and § 76‑a together and grounded its holding in the Legislature’s text.

Reeves v. Associated Newspapers, Ltd., 232 AD3d 10 (1st Dep’t 2024): The First Department applied the expanded § 76‑a definitions to a suit commenced before, but continued after, November 10, 2020, and held the enhanced attorneys’ fee remedy available because plaintiffs continued their SLAPP action post‑amendment. Reeves thus implicitly (and necessarily) applied § 76‑a to continued actions in order to trigger § 3211(g) and § 70‑a.

Eustache v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 236 AD3d 590 (1st Dep’t 2025): Eustache noted that the amended definition of “action involving public petition and participation” does not apply retroactively to motions to dismiss filed in actions commenced before the effective date. Isaly narrows Eustache’s reach, declining to apply that statement to actions that were in fact continued after the effective date, as doing so would be inconsistent with Gottwald and Reeves.

VIP Pet Grooming Studio, Inc. v. Sproule, 224 AD3d 78 (2d Dep’t 2024), and Burton v. Porcelain, 223 AD3d 775 (2d Dep’t 2024): Cited with “cf.” signal, these Second Department cases reflect a more restrictive approach to applying the amended § 76‑a in pre‑amendment suits. Isaly explicitly takes the Reeves/Gottwald path, contributing to an interdepartmental divergence likely to invite further clarification by the Court of Appeals.

Swiezy v. Investigative Post, Inc., 228 AD3d 1266 (4th Dep’t 2024): The Fourth Department aligns with the Reeves/Gottwald view, holding the amendments may be applied to continued actions and permitting fee‑shifting under § 70‑a.

Statutory interpretation authorities: The court relies on in pari materia principles (Matter of Albany Law School v. N.Y. State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 121 [2012]) and statutory harmonization (Matter of Tall Trees Constr. Corp. v. Zoning Bd. of Appeals, 97 NY2d 86, 91 [2001]) to read §§ 70‑a, 76‑a, and CPLR 3211(g)/3212(h) as an integrated scheme adopted together in 2020.

Procedural doctrines: People v. Evans, 94 NY2d 499 (2000) (law of the case is a discretionary doctrine that does not limit the court’s authority), Kenney v. City of New York, 74 AD3d 630 (1st Dep’t 2010) (prior rulings may be revisited upon a change in the law), and Favourite Ltd. v. Cico, 42 NY3d 250 (2024) (trial court proceedings must follow the appellate remittitur; dismissals before the close of evidence are not on the merits under CPLR 5013 unless specified; nonfinal orders that leave claims pending are not appealable to the Court of Appeals) frame the court’s jurisdictional and finality analysis.

Legal Reasoning

Text and structure of the 2020 amendments:
- Section 76‑a(1)(a) broadens “actions involving public petition and participation” to include “any communication in a place open to the public or a public forum in connection with an issue of public interest.”
- Section 70‑a(1)(a) creates a fee‑shifting remedy where an action “was commenced or continued” without a substantial basis in fact and law or a substantial argument for changing the law.
- CPLR 3211(g) supplies the heightened dismissal standard—once the defendant shows the case is covered by § 76‑a, the claim must be dismissed unless the plaintiff demonstrates a “substantial basis” in law or a “substantial argument” for change; discovery is stayed absent a targeted showing of necessity.
Reading these provisions together, as the court does under in pari materia principles, compels application of the amended § 76‑a definitions when determining a § 3211(g) motion and the availability of § 70‑a fees in actions that have been continued beyond the effective date.
Prospective application via “continuation”:
- Following Gottwald, the court reiterates there is no retroactivity concern when the amendments are applied to post‑effective‑date “continuation.”
- Isaly’s August 22, 2022 motion to reargue qualifies as a continuation of the lawsuit, thereby prospectively activating the amended § 76‑a and the § 3211(g)/§ 70‑a framework.
Clarifying Eustache and harmonizing First Department authority:
- Any reading of Eustache that would bar application of § 76‑a to continued actions conflicts with Gottwald and Reeves. The court expressly declines to apply Eustache that way.
- This clarification preserves Reeves’s logic: because § 3211(g) and § 70‑a both turn on § 76‑a’s definition, the expanded § 76‑a must apply to continued actions for the scheme to function coherently.
Application to the parties:
- The STAT article is core public‑interest reporting in a public forum on alleged workplace misconduct at a prominent biotech fund; thus, the action falls within amended § 76‑a(1)(a)/(1)(d).
- Garde: Supreme Court had already dismissed under CPLR 3211(a)(7). The Appellate Division holds it was also proper to grant dismissal under § 3211(g) and to proceed to determine attorney’s fees. The order dismissing under (a)(7) was not final while appeals were pending, leaving the trial court with jurisdiction; moreover, § 3211(g) and fee issues had been stayed, not resolved.
- Burke: Applying the amended § 76‑a definition, the court affirms dismissal under § 3211(g). The request for additional discovery was properly denied because the anti‑SLAPP scheme stays discovery except upon a particularized showing that targeted discovery is necessary to meet the plaintiff’s burden.
Fee‑shifting:
- Because the action was continued post‑amendment and dismissed under § 3211(g), defendants are entitled to seek reasonable attorneys’ fees under § 70‑a(1)(a). The matter is remitted for the calculation of amounts.

Impact and Practical Consequences

Isaly cements a crucial proposition in New York anti‑SLAPP practice: parties who continue litigating pre‑2020 defamation actions after November 10, 2020 run the full gauntlet of the amended statute. The consequences are significant:

Coverage: The expanded § 76‑a definition now governs “continued” cases, sweeping in a broad array of public‑interest communications (e.g., journalism, commentary, and public discourse), not just classic petitioning activity.
Heightened early merits test: CPLR 3211(g) front‑loads the burden on plaintiffs to show a “substantial basis” in law or a substantial argument for doctrinal change. In practice, this frequently extinguishes weak claims at the pleadings stage with limited or no discovery.
Fee exposure: Plaintiffs who persist after the effective date face fee‑shifting for “commenced or continued” actions without substantial basis. This materially alters settlement leverage and litigation risk for legacy cases.
Sources and non‑media defendants benefit: The court’s application of the statute to Burke underscores that anti‑SLAPP protections are not confined to media entities; sources and other speakers can invoke them.
Departmental divergence: By expressly aligning with Reeves and Gottwald and distinguishing Eustache, while citing Second Department decisions with a contrary tilt, Isaly deepens an emerging split among departments, positioning the issue for potential Court of Appeals clarification.
Procedural continuity: Trial courts retain authority to address stayed anti‑SLAPP issues, including fees, even while prior nonfinal orders are on appeal. Practitioners should preserve and revisit anti‑SLAPP arguments as appellate developments (e.g., Gottwald) change the legal landscape.

Complex Concepts Simplified

Anti‑SLAPP: Statutes designed to deter “Strategic Lawsuits Against Public Participation” that chill speech on public issues. New York’s 2020 amendments dramatically broadened coverage beyond traditional petitioning to “any” public‑interest communication in a public forum.
“Action involving public petition and participation” (Civil Rights Law § 76‑a): Post‑2020, this includes speech on issues of “public interest,” defined broadly as any subject other than a purely private matter.
CPLR 3211(a)(7) vs. 3211(g): Subsection (a)(7) is the familiar motion to dismiss for failure to state a claim. Subsection (g) is the anti‑SLAPP “special” dismissal mechanism: once a defendant shows the case falls within § 76‑a, the court must dismiss unless the plaintiff affirmatively shows a substantial legal basis or substantial argument for changing the law. Discovery is stayed absent a specific, necessary showing.
Fee‑shifting (Civil Rights Law § 70‑a): If a protected defendant shows the action was “commenced or continued” without a substantial basis in fact and law, the court awards reasonable attorneys’ fees and costs. This is the core deterrent to meritless SLAPPs.
Prospective application via “continuation”: Even though the amendments are not retroactive, they apply prospectively to conduct after November 10, 2020. Continuing to litigate—e.g., by moving to reargue, amending, opposing motions, or otherwise prosecuting the case—after that date can trigger the amended scheme.
Law of the case vs. finality: “Law of the case” is a prudential doctrine guiding, not constraining, judicial discretion; new controlling authority (like Gottwald) can justify re‑examination. Nonfinal orders (those leaving claims pending) do not deprive the trial court of jurisdiction to address stayed or unresolved issues.

Conclusion

Isaly v. Garde delivers a clear and consequential rule for New York defamation and public‑interest speech litigation: a pre‑2020 suit becomes subject to the 2020 anti‑SLAPP amendments when the plaintiff “continues” the action after the effective date—even by filing a motion to reargue. Reading Civil Rights Law §§ 70‑a and 76‑a together with CPLR 3211(g), the court applies the amended, expansive definition of covered speech, enforces the heightened “substantial basis” standard at the pleadings stage, and authorizes fee‑shifting against plaintiffs who persist without adequate legal footing. The opinion harmonizes First Department law with the Court of Appeals’ directive in Gottwald, narrows the reach of Eustache in the continued‑case context, and aligns with the Fourth Department’s approach, while acknowledging contrary Second Department signals.

For practitioners, the message is plain: reassess the viability of any pre‑2020 defamation or related claims that implicate public‑interest speech before taking post‑amendment steps to press them forward. For media organizations, journalists, and sources, Isaly strengthens the protective architecture of New York’s anti‑SLAPP regime and underscores courts’ willingness to award fees when meritless suits are prolonged in the face of the 2020 reforms.