        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

318
CA 12-01219
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


NATIONAL FUEL GAS DISTRIBUTION CORPORATION,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PUSH BUFFALO (PEOPLE UNITED FOR SUSTAINABLE
HOUSING) AND WHITNEY YAX,
DEFENDANTS-RESPONDENTS-APPELLANTS.


PHILLIPS LYTLE LLP, BUFFALO (KENNETH A. MANNING OF COUNSEL), FOR
PLAINTIFF-APPELLANT-RESPONDENT.

DUGGAN & BENTIVOGLI LLP, WILLIAMSVILLE (JAMES J. DUGGAN OF COUNSEL),
AND CANTOR, DOLCE & PANEPINTO, P.C., BUFFALO, FOR
DEFENDANTS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Gerald J. Whalen, J.), entered March 2, 2012. The order,
among other things, denied in part the motion of defendants to dismiss
the amended complaint.

     It is hereby ORDERED that said appeal by plaintiff is unanimously
dismissed and the order is otherwise affirmed without costs.

     Memorandum: Plaintiff commenced this action alleging, inter
alia, that members of defendant, PUSH Buffalo (People United for
Sustainable Housing) (hereafter, PUSH), a community organization, and
defendant Whitney Yax, a member of PUSH, trespassed on plaintiff’s
property in Williamsville and Buffalo, New York in staging
demonstrations concerning plaintiff’s use of funding it received to
assist low-income customers with heating costs and with increasing the
energy efficiency of their homes. According to defendants, this
action constituted an impermissible Strategic Lawsuit Against Public
Participation (SLAPP action) in violation of Civil Rights Law § 76-a
(1), because it hindered defendants’ efforts to challenge the use by
plaintiff of the funding in question, and defendants sought, inter
alia, attorneys’ fees in their counterclaims pursuant to Civil Rights
Law § 70-a (1) (a). Supreme Court granted defendants’ motion seeking
to dismiss the amended complaint (see CPLR 3211 [g]) and for summary
judgment dismissing the amended complaint (see CPLR 3212 [h]) with the
exception of the trespass claims against PUSH, and granted those parts
of plaintiff’s cross motion for partial summary judgment on liability
on those trespass claims and for summary judgment dismissing the
counterclaims (see CPLR 3212 [h]). We affirm.
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                                                         CA 12-01219

     As a preliminary matter, we conclude that plaintiff is not
aggrieved by the order, and we therefore dismiss plaintiff’s appeal
(see CPLR 5511; Parochial Bus Sys. v Board of Educ. of City of N.Y.,
60 NY2d 539, 544-545). On its appeal, plaintiff challenges only the
court’s determination that the action falls within the statutory
definition of a SLAPP action, i.e., that it is materially related to
PUSH’s challenge to plaintiff’s application to renew its permit to
operate the Conservation Intervention Program (CIP) (see Civil Rights
Law § 70-a [1] [a]). That challenge is relevant only in connection
with defendants’ counterclaims and, in granting those parts of
plaintiff’s cross motion for summary judgment dismissing the
counterclaims, the court granted plaintiff the full relief it sought
with respect to the counterclaims (see Parochial Bus Sys., 60 NY2d at
545). We may, however, consider plaintiff’s contention as an
alternative ground for affirmance in connection with defendants’ cross
appeal (see id.).

     “An ‘action involving public petition and participation’ is an
action . . . for damages that is brought by a public applicant or
permittee, and is materially related to any efforts of the defendant
to . . . comment on, . . . challenge or oppose such application or
permission” (Civil Rights Law § 76-a [1] [a]). Plaintiff alleged that
PUSH members trespassed on its private property when approximately 50
protesters appeared at plaintiff’s headquarters and then, later the
same day, at a customer service center, demanding a meeting with the
chief executive officer (CEO) and refusing to leave when requested to
do so by plaintiff’s employees. The PUSH members left the respective
locations only after the police arrived. The protest by PUSH members
was designed to demand a meeting with plaintiff’s CEO to challenge its
application to the New York State Public Service Commission for a
renewal of its permit to operate the CIP. We therefore reject
plaintiff’s contention that the allegations in the trespass claims
against PUSH do not constitute allegations within the meaning of a
SLAPP action, inasmuch as they are indeed materially related to PUSH’s
challenge to plaintiff’s application to renew its CIP permit. Thus,
plaintiff’s action against PUSH was subject to “a heightened standard
of proof” to avoid dismissal (Guerrero v Carva, 10 AD3d 105, 116; see
CPLR 3211 [g]; 3212 [h]).

     Nevertheless, we conclude that the court properly refused to
dismiss the claims against PUSH for trespass inasmuch as plaintiff’s
action has “a substantial basis in fact and law” (CPLR 3212 [h]), and
we conclude that the court properly granted those parts of plaintiff’s
cross motion for partial summary judgment on liability on those
claims. “The elements of a cause of action sounding in trespass are
an intentional entry onto the land of another without justification or
permission . . . , or a refusal to leave after permission has been
granted but thereafter withdrawn” (Volunteer Fire Assn. of Tappan,
Inc. v County of Rockland, 101 AD3d 853, 855). It is well established
that trespassing is not a protected First Amendment activity (see
Tillman v Distribution Sys. of Am., 224 AD2d 79, 87, lv denied 89 NY2d
814, appeal dismissed 89 NY2d 938; Latrieste Rest. & Cabaret v Village
of Port Chester, 212 AD2d 668, 668-669, lv denied 86 NY2d 837, 838).
In addition, the court properly granted those parts of plaintiff’s
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                                                         CA 12-01219

cross motion for summary judgment dismissing the counterclaims
seeking, inter alia, attorneys’ fees pursuant to Civil Rights Law §
70-a (1).

     Although the amended complaint against defendant Whitney Yax was
dismissed in its entirety, we reject her contention that the court
abused its discretion in refusing to award attorneys’ fees on her
counterclaim pursuant to Civil Rights Law § 70-a (1). That section
provides only that such fees may be recovered, and we perceive no
abuse of discretion or improvident exercise of discretion in the
court’s refusal to award such fees in this case (see generally Matter
of West Branch Conservation Assn. v Planning Bd. of Town of
Clarkstown, 222 AD2d 513, 515).




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
