TROs Create Presumptive Probable Cause and 2020 Anti‑SLAPP Amendments Are Not Retroactive

Commentary on GLD3, LLC v. Albra, 2025 NY Slip Op 04881 (2d Dept. Sept. 10, 2025)

Introduction

The Appellate Division, Second Department, in GLD3, LLC v. Albra, affirmed the dismissal of a civil malicious prosecution claim arising from a short-lived Article 78 proceeding that produced a temporary restraining order (TRO) on the eve of a municipal hearing. The decision squarely reinforces two important principles in New York practice:

• A judicial grant of provisional relief—here, a TRO—in the underlying proceeding creates a presumption of probable cause that defeats a subsequent malicious prosecution claim unless the plaintiff pleads specific facts overcoming that presumption.
• The 2020 amendments to New York’s anti-SLAPP statutes (Civil Rights Law §§ 70-a, 76-a) do not apply retroactively, and pre-2020 anti-SLAPP standards govern actions accruing before November 10, 2020.

The dispute stems from the proposed “Continental Commons” development in the Town of Fishkill. When the then Supervisor-Elect, Azem “Ozzy” Albra, initiated an Article 78 proceeding that yielded a TRO blocking a December 30, 2019 hearing on extending water and sewer districts, the developer entities (GLD3, LLC and Snook-9 Realty, Inc.) later filed this action for malicious prosecution after the Article 78 was discontinued the next day. The trial court dismissed their complaint under CPLR 3211(a)(7); it also denied Albra’s request to add anti-SLAPP counterclaims and for sanctions. Both sides appealed. The Second Department affirmed across the board.

Summary of the Opinion

• Malicious prosecution dismissal affirmed: Because the Article 78 court granted a TRO, Albra benefited from a presumption of probable cause. The developer plaintiffs failed to plead specific facts overcoming that presumption, and the evidentiary materials (the Article 78 petition and the TRO hearing transcript) confirmed that the alleged “entire lack of probable cause” was “not a fact at all.”
• Anti-SLAPP counterclaims properly rejected: The 2020 amendments to Civil Rights Law §§ 70-a and 76-a do not apply retroactively (citing VIP Pet Grooming Studio and the Court of Appeals’ decision in Gottwald v. Sebert). Under the pre-2020 SLAPP framework and related CPLR provisions, the plaintiffs demonstrated the action had a “substantial basis in fact and law,” rendering the proposed counterclaims palpably insufficient.
• No sanctions: Although the complaint was dismissed, the plaintiffs’ arguments were not frivolous under 22 NYCRR 130-1.1.

Factual and Procedural Background

GLD3, LLC and Snook-9 Realty, Inc. own adjacent parcels in Fishkill and proposed a “colonial village” development known as “Continental Commons.” A Town Board hearing to consider extending water and sewer districts to serve the project was set for December 18, 2019 but did not occur for lack of a quorum. A special meeting and hearings were scheduled for December 30, 2019.

On December 30, 2019, the Town Supervisor-Elect, Azem “Ozzy” Albra, commenced a CPLR article 78 proceeding to restrain the Board from conducting the December 30 hearings. That same day, the Supreme Court held a hearing (with the developer plaintiffs and Albra present) and granted a TRO. On December 31, 2019, Albra discontinued the Article 78. He assumed office on January 1, 2020, and the developer’s application was never approved.

The developers then sued Albra for malicious prosecution. Albra moved to dismiss for failure to state a claim (CPLR 3211(a)(7)), sought leave to amend to add anti-SLAPP counterclaims under Civil Rights Law §§ 70-a and 76-a, and requested sanctions (22 NYCRR 130-1.1). The trial court granted the 3211(a)(7) dismissal and denied leave to amend and sanctions. On appeal and cross-appeal, the Second Department affirmed.

Detailed Analysis

Precedents Cited and Their Influence

• CPLR 3211(a)(7) standard: The court reiterated that on a motion to dismiss for failure to state a claim, courts accept the complaint’s facts as true, accord plaintiffs every favorable inference, and ask only whether the allegations fit within any cognizable legal theory (Jennings v Metropolitan Transp. Auth., 226 AD3d 662; Sander v Westchester Reform Temple, 228 AD3d 688, lv granted 42 NY3d 910). When evidentiary material is considered without converting to summary judgment, the question becomes whether the plaintiff has a cause of action—not merely whether the pleading states one—and dismissal is improper unless the plaintiff’s material fact “is not a fact at all” or there is no significant factual dispute (Old Republic Natl. Title Ins. Co. v 1152 53 Mgt., LLC, 227 AD3d 824).
• Malicious prosecution elements and “entire lack of probable cause”: The court relied on Kaufman v Kaufman (206 AD3d 805) and Maspeth Fed. Sav. & Loan Assn. v Elizer (197 AD3d 1253) for the six elements of civil malicious prosecution: (1) prosecution of a civil action, (2) by or at the instance of defendant, (3) without probable cause, (4) with malice, (5) favorable termination, and (6) special injury. Quoting Engel v CBS, Inc. (93 NY2d 195), the court emphasized the demanding requirement that the prior proceeding be brought with an “entire lack of probable cause,” and that the “absence of probable cause must also be patent” (Kaufman, 206 AD3d at 808).
• TROs create a presumption of probable cause: The decision cites Hornstein v Wolf (67 NY2d 721) and Facebook, Inc. v DLA Piper LLP (US) (134 AD3d 610), along with Shaffer v Gilberg (125 AD3d 632), for the rule that a court’s grant of provisional relief in the underlying litigation—such as a TRO—raises a presumption that the suit was brought with probable cause. This presumption significantly raises the bar for malicious prosecution plaintiffs.
• Anti-SLAPP retroactivity and standards: On retroactivity, the court followed VIP Pet Grooming Studio, Inc. v Sproule (224 AD3d 78) and the Court of Appeals’ holding in Gottwald v Sebert (40 NY3d 240) that the 2020 amendments expanding Civil Rights Law §§ 70-a and 76-a are not retroactive. On the pre-2020 scheme, the court referenced Waterways at Bay Pointe Homeowners Assn., Inc. v Waterways Dev. Corp. (132 AD3d 975) and Southampton Day Camp Realty, LLC v Gormon (118 AD3d 976), explaining the narrow scope of the original SLAPP law and the special burdens under CPLR 3211(g) and 3212(h), which require a plaintiff to show the action has a “substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.” The court noted that GLD3 met that substantial-basis threshold (citing Mable Assets, LLC v Rachmanov, 192 AD3d 998).
• Sanctions standard: The court rejected sanctions under 22 NYCRR 130-1.1, citing U.S. Bank N.A. v Jack (219 AD3d 1369) and Matter of Fanizzi v Planning Bd. of Patterson (146 AD3d 98), because—despite dismissal—the plaintiffs’ conduct did not rise to “frivolous.”

Legal Reasoning Explained

1) Dismissal of the Malicious Prosecution Claim

The lynchpin is probable cause. New York imposes a stringent requirement: a malicious prosecution plaintiff must show the prior proceeding was commenced with an “entire lack of probable cause,” and that lack must be “patent.” A judicial grant of provisional relief in the prior action generates a presumption of probable cause. Here, the Article 78 court granted a TRO after a hearing at which both sides (including the developers) were present. That judicial act presumptively established that Albra’s filing had a reasonable basis.

The developers were required to plead specific facts overcoming the presumption—for example, that the TRO was procured by fraud, perjury, or material misrepresentation, or that the court lacked a fair opportunity to assess the merits. They did not. Further, because the Second Department considered the underlying petition and the TRO hearing transcript (evidentiary material) without converting the motion, it asked whether the developers “have a cause of action,” not just whether the complaint states one. Those materials underscored that the allegation of an “entire lack of probable cause” was “not a fact at all,” warranting dismissal under CPLR 3211(a)(7).

2) Anti-SLAPP Counterclaims: Non-Retroactivity and Substantial-Basis Screen

Albra sought to amend his answer to assert counterclaims under Civil Rights Law §§ 70-a and 76-a. The court denied leave as palpably insufficient for two reasons:

• Timing and retroactivity: The developers’ malicious prosecution claim accrued in December 2019, when the Article 78 was discontinued. The 2020 anti-SLAPP amendments took effect on November 10, 2020. Following VIP Pet Grooming and Gottwald, the Second Department held that the amendments do not apply retroactively to actions accruing before the effective date. That foreclosed counterclaims premised on the broader, post-2020 protections and fee-shifting.
• Pre-2020 framework and substantial basis: Even under the pre-2020 SLAPP regime—much narrower and aimed chiefly at suits by public applicants or permittees against citizens participating in public processes—the related CPLR provisions (3211(g), 3212(h)) impose a “substantial basis” screening. The court found that the developers’ action had a substantial basis in fact and law, citing Mable Assets. That finding effectively defeats a § 70-a damages claim and renders any proposed anti-SLAPP counterclaims patently devoid of merit.

3) Sanctions (22 NYCRR 130-1.1)

The court declined to impose costs or fees. While the complaint did not survive the heightened probable cause barrier, the arguments were not frivolous. New York’s sanctions rule targets conduct that is completely without merit in law, undertaken primarily to delay or harass, or that asserts false statements. The developers’ litigation fell short of that threshold.

Impact and Practical Implications

• Malicious prosecution claims following a TRO face steep odds: Any judicial grant of provisional relief in the prior case—especially after an adversarial hearing—creates a strong presumption of probable cause. Plaintiffs must plead with specificity to overcome it, typically by alleging fraud, perjury, or similar misconduct that tainted the order.
• Pleading strategy under CPLR 3211(a)(7): When defendants submit underlying filings and transcripts, courts may evaluate whether a plaintiff “has a cause of action,” not merely whether one is pleaded. Plaintiffs should be prepared at the motion stage to meet this more searching inquiry when evidentiary materials are considered.
• Article 78 proceedings are no exception: Using an Article 78 as the predicate “prosecution” does not change the analysis; a TRO in that proceeding still triggers the probable cause presumption.
• Anti-SLAPP timing matters: For claims accruing before November 10, 2020, defendants cannot invoke the broadened 2020 anti-SLAPP amendments. Litigants must analyze retroactivity carefully before moving under §§ 70-a/76-a.
• Pre-2020 anti-SLAPP remains narrow: The earlier law protected citizen participation against suits by public applicants or permittees. Even where potentially applicable, plaintiffs can defeat special dismissal mechanisms by showing a “substantial basis in fact and law.” That showing also undermines defendants’ claims to § 70-a damages.
• Sanctions are exceptional, not routine: Dismissal alone does not equal frivolous conduct. Fee-shifting under court rules requires more than an unsuccessful claim; it demands demonstrably improper litigation behavior.

Complex Concepts Simplified

• Malicious prosecution (civil): A tort allowing damages when someone prosecuted a civil action against you without probable cause and with malice, the case ended in your favor, and you suffered a “special injury” (a significant harm beyond standard litigation costs, such as a provisional restraint on property or similar concrete harm).
• Probable cause in this context: A reasonable basis to commence the prior proceeding. If a court granted a TRO or similar provisional relief, the law presumes the filer had probable cause.
• Overcoming the presumption: Plaintiffs must plead specific facts showing the order was procured through fraud, perjury, or similar misconduct, or that the court lacked a meaningful chance to assess the merits. Conclusory allegations are inadequate.
• TRO (Temporary Restraining Order): A short-term court order that preserves the status quo until a fuller hearing can be held on a preliminary injunction. In New York, a TRO may be issued under CPLR article 63 and can be granted after a brief hearing or even ex parte in limited circumstances.
• CPLR 3211(a)(7): A motion to dismiss for failure to state a cause of action. If the court considers evidentiary materials, the inquiry becomes whether the plaintiff actually “has” a cause of action, not just whether the complaint’s words would state one if true.
• Anti-SLAPP (Strategic Lawsuits Against Public Participation): Laws designed to deter lawsuits meant to silence participation in public affairs. New York’s 2020 amendments expanded protections and fee-shifting, but those amendments do not apply to claims that accrued before November 10, 2020.
• “Substantial basis in fact and law” (CPLR 3211(g)/3212(h)): In SLAPP contexts under the pre-2020 scheme, a plaintiff must show the claim has solid factual and legal grounding (or a substantial argument to change the law). Meeting this threshold helps defeat dismissal and undermines a defendant’s claim to anti-SLAPP damages.
• 22 NYCRR 130-1.1 sanctions: Court-imposed costs or fees for frivolous conduct. Losing is not enough; there must be conduct completely without merit, primarily to delay/harass, or that involves false statements.

Takeaways and Significance

• For developers and civil plaintiffs: If your malicious prosecution claim rests on a prior proceeding where the court granted any provisional relief, anticipate an early dismissal unless you can plead concrete, particularized facts showing how that relief was improperly obtained. Absent that, the “entire lack” of probable cause element is unlikely to be satisfied.
• For public officials and participants in public processes: Judicial endorsements in underlying litigation—like TROs—provide powerful protection against later malicious prosecution suits. Preserve transcripts and orders; they can be decisive at the pleading stage.
• For anti-SLAPP litigants: Retroactivity is now settled: the 2020 amendments do not reach back. Evaluate accrual dates and the narrower pre-2020 framework before moving for anti-SLAPP relief or damages. And remember: if the plaintiff can show a “substantial basis,” fee-shifting under § 70-a will likely be out of reach.
• For trial courts and practitioners: GLD3 underscores the utility of considering limited evidentiary materials on a 3211(a)(7) motion to test whether the plaintiff actually “has” the cause of action. Where a TRO order and hearing transcript exist, they can be dispositive on probable cause.

Conclusion

GLD3, LLC v. Albra reinforces two consequential doctrines in New York civil practice. First, a TRO in the underlying action presumptively establishes probable cause, making malicious prosecution claims exceptionally difficult unless plaintiffs plead specific, non-conclusory facts overcoming that presumption. Second, the 2020 anti-SLAPP amendments are not retroactive; claims accruing before November 10, 2020 remain governed by the narrower pre-amendment regime, and plaintiffs who demonstrate a “substantial basis in fact and law” will thwart both dismissal under the SLAPP special motion standards and any derivative § 70-a damages.

As municipal development controversies continue to generate high-stakes litigation, GLD3 provides a clear roadmap: judicial provisional relief commands deference in later tort suits, evidentiary materials can be decisive at the pleading stage, and anti-SLAPP protections must be analyzed through a precise temporal lens. The decision offers practical guidance and doctrinal clarity for parties navigating the intersection of public participation, land-use disputes, and post-litigation tort claims.