We will be the first to admit surprise at the application of Anti-Slapp principles to legal malpractice cases. Nevertheless, references have started to creep into court’s decisions. Avanza Group, LLC v Golenbock Eiseman Assor Bell & Peskoe LLP 2025 NY Slip Op 32125(U) June 13, 2025 Supreme Court, New York County Docket Number: Index No. 659427/2024 Judge: Lyle E. Frank is one such case.
“Plaintiff the Avanza Group, LLC is a provider of merchant cash advances (“MCAs”). Plaintiff entered into a series of agreements with non-party BFG 102, LLC, a factoring company that provides funding for MCA companies. During the relevant time, BFG was represented by defendant Golenbock Eiseman Assor Bell & Peskoe LLP, who had assigned attorney Elizabeth C. Conway (collectively with Golenbock Eiseman, “Defendants”) to the matter. In April of 2023, Plaintiff and BFG agreed over email to modify the terms of these agreements as relating to Plaintiff’s financial obligations. Shortly thereafter, Defendants sent out letters to many of Avanza’s MCA merchants, describing Plaintiff as in default and directing the diversion of funds from Plaintiff to BFG (the “April Letters”). A letter was also sent to non-party ACH, who processes electronic fund transfers. Plaintiff alleges that they were not genuinely in default at this time and that the default was “manufactured” in order to rectify BFG’s poor financial condition. Plaintiff also alleges that Defendants were motivated to assist in manufacturing a default by a desire to ensure payment of their legal fees.”
“Defendants have moved to dismiss the complaint for failure to state a claim and as contradicted by documentary evidence. They have also moved to dismiss under New York’s Anti-SLAPP law, arguing that this proceeding was instigated in a “bad faith effort to harass and retaliate against” BFG and Defendants. Plaintiff opposes. For the reasons that follow, the motion is granted.
Defendants Have Shown That This Is a SLAPP Suit
A threshold issue in this matter is whether the Anti-SLAPP law applies to this proceeding. This statute is found in New York’s Civil Rights Law Article 7, which permits a “defendant in an action involving public petition and participation” to recover costs and attorneys’ fees if it is determined that “the action involving public petition and participation was commenced or continued without a substantial basis in fact and law.” N.Y. Civil Rights Law 70-a.1 According to a recently expanded definition of the term “public petition and participation”, this encompasses claims that are based upon “any other lawful conduct in furtherance of the exercise of the constitutional right […] of petition.” N.Y. Civil Rights Law § 76-a(1)(a)(2). The right of petition includes litigation as well as “activity incidental to litigation.” Matter of People of the State of New York v. Northern Leasing Sys., Inc., 193 A.D.3d 67, 77 [1st Dept. 2021]. The First Department has confirmed that this right encompasses litigation regardless of whether the subject matter of that suit could be considered private or public. Sweetpea Ventures Inc. v. Belmamoun, 231 A.D.3d 460, 461 [1st Dept. 2024].
Defendants argue that this case was brought against them because of their representation of BFG and for their legal advocacy work on behalf of their client, therefore it is considered a retaliatory action involving the right to public petition. Plaintiff disagrees and argues that a claim for tortious interference cannot be considered a SLAPP suit. They do not cite to any binding authority for this proposition. In Black, the First Department found that a malicious prosecution claim that was “rooted in allegations involving defendants’ commencement and prosecution of a
legal action” invoked the right to petition and therefore the procedural requirements of the Anti- SLAPP law. Black v. Ganieva, 236 A.D.3d 427, 427 [1st Dept. 2025]. The First Department has also applied the Anti-SLAPP law to a case involving claims of tortious interference pled against an opposing party and their counsel. 215 W. 84th St. Owner LLC v. Bailey, 217 A.D.3d 488, 488 [1st Dept. 2023]; see 215 W. 84th St. Owner LLC v. Bailey, 2022 N.Y.L.J. LEXIS 1717, *1 [Sup. Ct. N.Y. Co. 2022].”
“But Defendants have argued persuasively that this instant proceeding was brought in response to Defendants’ actions taken in the course of representing their client in the BFG Suit. The timing of this proceeding (given the context of the BFG Suit’s developments) and the contentious relationship between the parties in the course of the BFG Suit (as seen by the multiple motions for contempt and to disqualify that were brought against Defendants in that proceeding by Avanza) lend credence to the retaliation theory. The fact that the claims brought were not defamation, but rather tortious interference and Judiciary Law claims, does not bar the application of the Anti-SLAPP provisions.”
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