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THE TWITTER/X POSTS REFERRING TO PLAINTIFF AS A “STALKER” AND STATING “THAT MAN HAS HARMED MULTIPLE WOMEN AND IS ABUSIVE AND MANIPULATIVE …” WERE DEEMED NONACTIONABLE OPINION AND THE DEFAMATION ACTION WAS DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined Supreme Court properly found that the anti-SLAPP statute applied to this defamation, but the defamation complaint should have been dismissed because the Twitter/X posts constituted nonactionable opinion:

Plaintiff and defendant were PhD students at Columbia University … and were enrolled in the same seminar … . Plaintiff alleges that he was defamed by two Tweets defendant posted on Twitter (now X) … .. In response to seeing a picture of plaintiff with “a prominent scholar, attorney, abolitionist, and author,” defendant retweeted the post with a meme stating, “if I speak, Twitter will suspend me,” followed by a comment “I am triggered.” She then separately tweeted, without naming plaintiff or the other individual in the photograph, “when the abolitionist posts your stalker,” followed later by a comment to her Tweet “that man has harmed multiple women and is abusive and manipulative but congratulations on his dissertation, I guess.” …

… [Supreme Court] should … have granted defendant’s motion to dismiss the complaint because plaintiff failed to show … that his claims had a substantial basis in law (Civil Rights Law §§ 70—a, 76—a; CPLR 3211[g] …). Defamation requires a false statement of fact and is judged from the perspective of an average, reasonable reader … . Context is critical for social media statements, where hyperbole and rhetorical exaggeration are common and are less likely to be interpreted literally … . Read in context, defendant’s tweets were emotionally charged reactions written in Twitter’s vernacular and accompanied by rhetoric, signaling that they were nonactionable opinions … .  Talbert v Tynes, 2026 NY Slip Op 01478, First Dept 3-17-26

Practice Point: Consult this decision for insight into the way courts interpret “hyperbole and rhetorical exaggeration” in the context of a defamation action based upon Twitter/X posts.​

 

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HERE A “CERTIFICATE OF DELINQUENCY” WAS NEVER FILED FOR ANY VIOLATION OF PROBATION BY THE DEFENDANT AND THE PERIOD OF PROBATION EXPIRED WHILE DEFENDANT WAS STILL UNDER THE SUPERVISION OF THE DRUG TREATMENT COURT; WHEN DEFENDANT VIOLATED THE TERMS OF PROBATION AGAIN, PROBATION WAS REVOKED AND DEFENDANT WAS SENTENCED TO INCARCERATION; BECAUSE THE REVOCATION AND SENTENCE TOOK PLACE AFTER THE PERIOD OF PROBATION EXPIRED, THE SENTENCING COURT HAD BEEN STRIPPED OF JURISDICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined that, because no “declaration of delinquency” had ever been filed, defendant’s [Mr. Curry’s] period of probation was never tolled. Therefore the court did not have jurisdiction to revoke his probation and sentence him to incarceration after his probationary period expired:

From 2019 through 2021, Mr. Curry participated in the drug treatment program with mixed results. The DTC [drug treatment court] made efforts to support a positive outcome, permitting Mr. Curry’s continued release after positive drug screens and ensuring he received outpatient treatment. July 5, 2021—the date at which Mr. Curry’s probation was set to expire—passed while Mr. Curry continued to participate in DTC. On December 14, 2021, due to another positive drug screen and missed court dates, the DTC revoked Mr. Curry’s probation and sentenced him to two years of incarceration and three years of post-release supervision. People v Curry, 2026 NY Slip Op 01448, CtApp 3-17-26

Practice Point: If a defendant violates probation but no certificate of delinquency is filed, the probationary period continues to run is not tolled. Here, despite probation violations by the defendant, no certificate of delinquency was ever filed. The court therefore did not have jurisdiction to revoke defendant’s probation and sentence him to incarceration after the expiration of his probationary period.​

 

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THE STREET STOP OF DEFENDANT WAS INVALID UNDER BOTH THE US SUPREME COURT’S “HILL VS CALIFORNIA” “MISTAKEN ARREST” CRITERIA AND THE NYS “DEBOUR” STREET STOP CRITERIA; THE WEAPON DISCARDED BY DEFENDANT AS HE FLED SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a three-judge dissent, determined the parole investigators did not have “reasonable suspicion” that the defendant was in fact the parole absconder for whom they had a warrant when they pulled along side the defendant on the street in an unmarked car. The parole investigators wore civilian clothes. The defendant, who was not the parole absconder, ran and threw away a firearm. He ultimately pled guilty to attempted criminal possession of a firearm. The defendant was wearing a ski mask so the investigators could not see his face when they pulled along side of him:

Supreme Court denied suppression, applying a rule for mistaken arrests derived from the U.S. Supreme Court’s decision in Hill v California (401 US 797 [1971]). The court credited the testimony of the investigator and his partner and held that the defendant’s physical similarities with the absconder, coupled with his “immediate” flight upon being approached, supported the officers’ reasonable belief that the defendant was the target of their warrant. * * *

The defendant and the People disagree about whether we should evaluate the investigators’ pursuit and arrest under De Bour or Hill. * * *

We need not decide which of the tests should control, because in this scenario we do not perceive a meaningful difference between Hill’s requirement of a reasonable mistaken belief and De Bour’s level three standard of reasonable suspicion. … Under Hill, the arresting officer must provide “reasonable, articulable grounds to believe that the suspect is the intended arrestee” … . By the same token, our De Bour caselaw specifies that reasonable suspicion requires an officer to point to “specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion” … . Thus, when it comes to evaluating this particular scenario, the tests essentially ask the same question: whether the totality of the circumstances, including the defendant’s appearance and any additional observations about their behavior, justifies the resulting police-citizen encounter.  * * *

Nothing in the record here demonstrates that the defendant could have known that he was fleeing from law enforcement. People v Jones, 2026 NY Slip Op 01447, CtApp 3-17-26

Practice Point: Here the US Supreme Court’s “mistaken arrest” criteria for a valid street stop and the NYS “Debour” criteria for a valid street stop required the same level of “reasonable suspicion.”

 

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THE FOURTEEN-MONTH PRE-INDICTMENT DELAY DID NOT VIOLATE DEFENDANT’S RIGHT TO A SPEEDY TRIAL (CT APP)

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the 14-month pre-indictment delay did not deprive defendant of his constitutional right to a speedy trial. Defendant was incarcerated when he threw urine on a corrections officer. The court analyzed the facts under the “Taranovich” criteria (37 NY2d 442):

This Court analyzes due process claims predicated on a pre-indictment delay by weighing the five factors set forth in People v Taranovich: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . “The Taranovich framework is a holistic one—that is, ‘no one factor or combination of the factors . . . is necessarily decisive or determinative of the speedy trial claim'” … . People v Tyson, 2026 NY Slip Op 01446, CtApp 3-17-26

Practice Point: Consult this decision for insight into how the Taranovich factors are applied to determine whether a pre-indictment delay violates the constitutional right to a s speedy trial.

 

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DEFENSE COUNSEL MAY HAVE HAD LEGITIMATE STRATEGIC REASONS FOR FAILING TO OBJECT TO A REPUGNANT VERDICT, INCLUDING THE AVOIDANCE OF THE RISK OF RE-EXPOSING DEFENDANT TO AN ATTEMPTED SECOND-DEGREE MURDER CONVICTION; DEFENDANT DID NOT DEMONSTRATE INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals determined defendant did not demonstrate his attorney’s failure to object to a repugnant verdict constituted ineffective assistance:

Defendant has not demonstrated a lack of strategic or other legitimate explanation for his attorney’s failure to object to the jury verdict as repugnant (see People v Benevento, 91 NY2d 708, 712 [1998]). Counsel could have declined to object to avoid the possibility that, to remedy the verdict’s repugnancy, the court might resubmit all charges to the jury, reexposing defendant to an attempted second-degree murder conviction (see CPL 310.50 [2]; People v Salemmo, 38 NY2d 357, 360-362 [1976]) That this additional conviction would not have increased defendant’s maximum sentencing exposure does not change this analysis. Sentencing exposure is not dispositive of the sentence a court ultimately imposes. Moreover, an additional felony conviction may have adverse collateral consequences and added societal stigma (see Ball v United States, 470 US 856, 865 [1985]; People v Greene, 41 NY3d 950, 951 [2024]), particularly a conviction for attempting to murder a police officer. People v Gaffney, 2026 NY Slip Op 01445, CtApp 3-17-26

Practice Point: Consult this decision for insight into when defense counsel’s failure to object to a repugnant verdict may be supported by legitimate strategic concerns—the avoidance of re-exposing defendant to charges of which he was acquitted, for example.

 

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THE EVIDENCE OF DEPRAVED INDIFFERENCE TO HUMAN LIFE WAS SUFFICIENT AND EVIDENCE OF DEFENDANT’S BIPOLAR DISORDER WAS PROPERLY PRECLUDED BECAUSE TIMELY NOTICE OF THE DEFENSE WAS NOT PROVIDED TO THE PEOPLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirmed defendant’s conviction of reckless endangerment first degree for a series of deliberate collisions with vehicles which culminated in his deliberately crashing into an occupied house. The evidence of depraved indifference to human life was deemed sufficient and evidence of defendant’s bipolar disorder was deemed properly precluded because timely notice of the defense was not provided:

The People introduced testimony from multiple witnesses who observed defendant driving erratically, “weaving” between lanes in heavy traffic, eyes open, and with a “look of rage on his face.” Over approximately three-tenths of a mile, defendant struck three vehicles, drove through a parking lot, and ultimately crashed into a house. Defendant began this course of conduct by making a “sharp right” directly into a tow truck, causing defendant’s vehicle to “lock[]” onto a car being towed and to “hang[]” from the wheel lift of the truck. After defendant’s vehicle “shook loose” from the tow truck, defendant “sped up” and “proceeded to take off” and a short time later he crashed into the rear of a van with such force that the driver hit his head on the roof. The driver felt defendant’s vehicle “pushing” him down the road. Other witnesses provided a similar description of defendant, with his hands on the steering wheel, appearing to intentionally hit the van “again and again and again,” “pushing” it forward. Defendant next crashed into the back of a third vehicle, then side-swiped the driver’s side, causing the vehicle to “hit the curb” and to “flip[] over on its roof.” A fire hydrant pierced the roof of the car one foot from the driver’s head. Defendant “took off [] fast” from this crash, drove over a sidewalk, through a motel parking lot, and crashed directly into a house, causing it to shake upon impact. Two people were inside the house at the time and heard “screeching tires” as the car approached. Crash data from the vehicle’s air bag control module showed that the brakes were not applied in the eight seconds prior to impact with the house. From this course of conduct, and the multiple witnesses who testified about defendant’s actions and demeanor, a rational jury could have concluded that defendant was aware of the risks involved in his behavior and acted without regard for whether the drivers of those vehicles, any pedestrians who might have been in the parking lot, or the people inside the house, lived or died and that, in sum, defendant displayed depraved indifference to human life. People v Bender, 2026 NY Slip Op 01444, CtApp 3-17-26

Practice Point: Consult this opinion for insight into the evidence required to support a jury’s conclusion that defendant acted with depraved indifference to human life.

Practice Point: A defendant’s failure to give timely notice of a psychiatric defense may result in preclusion of the psychiatric evidence. Here evidence of defendant’s bipolar condition was precluded because the CPL 250.10 notice was untimely.

 

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THE WORKERS’ COMPENSATION BOARD IS NOT AUTHORIZED TO AWARD ATTORNEY’S FEES FOR CHARGES ASSESSED AGAINST AN EMPLOYER OR INSURANCE CARRIER FOR UNTIMELY COMPENSATION PAYMENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined that the Workers” Compensation Board (Board) did not have the authority to approve attorney’s fees for charges against an employer or insurance carrier under Workers’ Compensation Law (WCL) section 25 for untimely compensation payments. The Board may only approve legal fees in accord with its counsel fees schedule in WCL section 24 which does not include charges under WCL section 25:

Counsel argues that the Board has long recognized that legal fees may be payable from late payment penalties, and that WCL 24 (2) … does not expressly limit the Board’s authority to approve such fees. Counsel further asserts that a claimant’s late payment award under WCL 25 is “compensation” under the WCL and thus falls within the WCL 24 (2) fee schedule. Counsel adds that permitting legal fees based on these charges furthers the WCL’s legislative purpose of promoting access to justice for injured workers by incentivizing attorneys skilled in handling WCL cases to represent claimants.

The Board counters that the plain text of WCL 24 (2) limits legal fee awards to those enumerated in the statute’s fee schedule. The Board further argues that charges assessed for late payments are not compensation but a separate award for a claimant assessed against an employer or insurance carrier. Lastly, the Board maintains that the amount of legal fees generated from an award listed on the fee schedule and the certainty that an attorney will receive those fees are sufficient incentives for attorneys to represent claimants.

We conclude that the Board does not have authority to approve legal fees based on charges assessed pursuant to WCL 25 because the text of WCL 24 (2) establishes a mandatory fee schedule that does not provide for such fees. Our interpretation does not lead to an absurd result. Indeed, the legislative history makes no mention of legal fees based on charges imposed for violations of WCL 25, let alone reflect a legislative concern that attorneys would refuse workers’ compensation cases if such fees were unavailable. Matter of Gonzalez v Northeast Parent & Child Socy., 2026 NY Slip Op 01443, CtApp 3-17-26

 

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HERE THE RESITITUTION FOR THE VICTIM’S OUT-OF-POCKET MEDICAL EXPENSES WAS VACATED BECAUSE THE JUDGE DID NOT MAKE A RECORD SUPPORTING THE AMOUNT AWARDED (THIRD DEPT).

The Third Department, vacating the restitution for the victim’s out-of-pocket medical expenses, determined the judge failed to make a record of those expenses as required by Penal Law section 60.27:

Although the restitution amount did not exceed the agreed-upon limit, the record is devoid of any hearing, colloquy or judicial determination confirming the actual out-of-pocket medical expenses incurred by the victim (see Penal Law § 60.27; CPL 400.30). Absent record evidence that the restitution imposed satisfied the requirements of Penal Law § 60.27, the order of restitution must be vacated and the matter remitted to County Court for reconsideration in accordance therewith … People v Jimenez- Rivera, 2026 NY Slip Op 01421, Third Dept 3-12-26

Practice Point: Penal Law 60.27 requires record evidence of the amount of restitution for out-of-pocket medical expenses.

 

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THE COMMISSIONER OF LABOR COULD NOT IMPOSE A NEW “RULE” WHICH HAD NEVER BEEN SUBJECT TO THE FORMAL RULEMAKING REQUIREMENTS IN THE STATE ADMINISTRATIVE PROCEDURE ACT (THIRD DEPT).

The Third Department, annulling the Department of Labor’s (DOL’s) determination, held that the Commissioner’s ruling was based upon a “rule” which had never been subject to the rule-making procedures required by the State Administrative Procedure Act. The Commissioner turned down the petitioner’s application for an O & P license (a license to own, possess and/or transport fireworks) because petitioner did not hold a PCC (an occupational license for the use of pyrotechnics). Making a PCC a requirement for an O & P license constituted a new “rule” which was invalid because the formal rulemaking procedures were never instituted:

… [T]he PCC requirement does not concern “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory,” all of which are excluded from formal rulemaking … . Instead, mandating access to a PCC for all O & P license applicants is a “[b]lanket requirement[ ] . . . to be generally applied in the future, regardless of individual circumstances” that is subject to the State Administrative Procedure Act’s rulemaking process … . Respondents’ failure to comply with the State Administrative Procedure Act before implementing the mandatory PCC requirement renders that requirement unenforceable … . Matter of Linear Research Assoc., Inc. v Reardon, 2026 NY Slip Op 01434, Third Dept 3-12-26

Practice Point: Consult this decision for insight into the difference between an administrative “rule” which is subject to the formal rulemaking requirements of the State Administrative Procedure Act and a “statement of general policy” which is not.

 

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A NEW YORK CITY LOCAL LAW WHICH PROHIBITS THE SALE OF FOIE GRAS, A “FATTY LIVER” CREATED BY FORCE FEEDING GEESE AND DUCKS, IS NOT PRE-EMPTED BY THE AGRICULTURE AND MARKETS LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mackey, determined the NYC Local Law which prohibited the sale of foe gras was not pre-empted by the Agriculture and Markets Law. Foie gras (fatty liver) is produced by force feeding geese or ducks several times a day:

Foie gras, which translates to English as “fatty liver,” is a food product obtained through such forced feeding of a goose or duck, by which the animal is made to consume large quantities of grain and fat using a pipe that is inserted down the esophagus. This process, which is repeated several times per day, seeks to produce a significantly enlarged liver when compared to that of a non-force-fed bird. * * *

… Agriculture and Markets Law § 305-a provides that “[l]ocal governments, when exercising]their powers to enact and administer comprehensive plans and local laws, ordinances, rules or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article, and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened” … . * * *

… Agriculture and Markets Law article 25-AA was expressly enacted to protect agricultural lands from “nonagricultural development extend[ing] into farm areas,” as well as “[o]rdinances inhibiting farming,” which “often lead[ ] to the idling or conversion of potentially productive agricultural land” … . The Legislature thus clearly expressed its intent that Agriculture and Markets Law § 305-a preempt those local laws that result in direct and unreasonable restrictions or regulations upon farming operations and the associated use of land — not the sale of products produced as a result of those operations in retail food and food service establishments, which may be subject to other statutory and regulatory limitations. Matter of City of New York v Ball, 2026 NY Slip Op 01426, Third Dept 3-12-26

Practice Point: Consult this opinion for insight into the Home Rule and pre-emption issues raised by a claim that a NYC Local Law, which prohibits the sale of animal products produced by force-feeding, is pre-empted by the Agriculture and Markets Law which seeks to limit infringement on farming operations. The pre-emption argument was rejected.​

 

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