First published: May 2025

You Can’t “Slapp” Them Down

By: William D. McCracken, Partner, Moritt Hock & Hamroff

TAKEAWAY Most co-op and condo boards, management companies, and board attorneys are familiar with shareholders or unit owners who incessantly complain about everything to do with how the co-op or condo is being operated. Sometimes those complaints have merit; often, however, the complaints lack foundation or any sense of proportionality. In this case, it is clear that the sponsor and condo board believed that the couple (and especially the husband) had crossed the line from legitimate, fair, and productive criticism to toxic, antisocial, and indefensible behavior. However, what the plaintiffs failed to recognize in time is that in New York, when individuals criticize management about matters of public interest (a broad concept that encompasses co-op and condo affairs), litigation should not be used as a tool to silence those voices unless very stringent pleading and evidentiary requirements can be met from the outset.

GLEN HARBOR HOLDINGS, LLC , GLEN HARBOR DEVELOPMENT CO.,LLC AND THE BOARD OF MANAGERS OF THE RESIDENCES AT GLEN HARBOR CONDOMINIUM V. DAVID WIENER AND CAROL WHITMAN WIENER

WHAT HAPPENED In August 2022, David and Carol Whitman Wiener bought an apartment at the luxury waterfront condominium The Residences at Glen Harbor on Long Island’s North Shore. Almost immediately after their purchase they began loudly and publicly complaining about the sponsor and building management. The sponsor-controlled board, developer and condo sponsor, in attempt to quiet the couple, sued them for a host of issues: private nuisance, public nuisance, tortious interference with prospective economic advantage, breach of contract, injunctive relief, defamation, defamation per se, slander, and for legal fees, seeking $1 million in direct damages and $2.5 million in punitive damages. In its lawsuit, 30 separate bullet points were listed illustrating how the couple (mostly David) behaved. These ranged from “walking around with a camera photographing and recording employees and making them feel uneasy” to “hanging out at the front desk every night and chewing the ear off the evening concierge which essentially holds him hostage,” to “stalking and loitering in the common areas and spewing hatred and lies about the manager and the Condominium.” The sponsor characterized the couple’s actions as “outrageous, malicious and scurrilous conduct” designed to “harass, defame and torment the Plaintiffs, the property manager of the Condominium and other unit owners of the Condominium” that has caused “current and future owners angst and has or will result in a loss of value to the sold and unsold units.”

In the face of this onslaught, the sponsor and board evidently expected to earn a decisive victory against the Wieners or, at the very least, force the couple to moderate their behavior.

Instead, the Wieners countered that they wouldn’t be “SLAPPed” down.

IN COURT The court granted Wiener's motion to dismiss, ordering the condo to pay legal fees and damages. What's notable is how quickly the condo et al recognized their inevitable defeat after the Wieners’ filed their motion, unsuccessfully attempting to mitigate the situation by trying to withdraw most claims.

The Wieners identified the complaint as a "casebook definition of a strategic lawsuit against public participation, or 'SLAPP' — litigation weaponized by powerful entities to silence critics through unsustainable legal fees, regardless of merit. Many states, including New York, have enacted anti-SLAPP legislation. Under NY Civil Rights Law Section 76-a, lawsuits "brought to intimidate or silence a person who has spoken out about a matter of public interest" can be immediately dismissed unless plaintiffs prove substantial legal basis - reversing the usual burden of proof.

The condo’s complaint fell directly within Section 76-a's scope. The 30 bullet points described the Wieners speaking on matters of public interest (condominium association management) that the condo sought to silence. As the court stated, "the true nature of this action is plaintiffs' dislike of defendants' public participation," which Section 76-a prohibits. Recognizing their overreach, the condo attempted to withdraw most claims via footnote in their opposition brief, but it was too late.

COUNSEL for the plaintiff ALAN A. HELLER Foster Garvey; for the defendeants ELIAD S. SHAPIRO, DAVID RABINOWITZ Moses & Singer, FREDERICK C. JOHS Lewis Johs Avallone Aviles; Justice Joseph C. Pastoressa