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THE DEFAMATION SUIT BY PLAINTIFF MARINA OWNER AGAINST AN ENVRONMENTAL ADVOCACY ORGANIZATION AND A PUBLISHER WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP); DEFENDANT WAS ABLE TO SHOW ONE PUBLISHED STATEMENT WAS FALSE; THEREFORE THE ACTION CAN PROCEED WITH RESPECT TO THAT ONE STATEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the action by plaintiff marina-owner against defendant environmental advocacy organization and defendant publisher was a strategic lawsuit against public participation (SLAPP). Therefore the burden shifted to plaintiff to demonstrate there was a substantial basis in law to allege that published statements were false. The Second Department found that all but one of the statements were truthful on nonactionable statements of opinion. The claim that the marina would encompass four times the area of the present marina was the one statement for which there was a substantial basis in law for claiming it to be defamatory:

In 1992, New York enacted legislation to provide protection from a strategic lawsuit against public participation (hereinafter SLAPP suit) that is, a lawsuit characterized as having little merit, brought in retaliation for making public comment on matters of civic significance (see Civil Rights Law §§ 70-a, 76-a …). The anti-SLAPP law … accomplishes its protective goal by providing expedited processes for a defendant to obtain dismissal of a SLAPP suit (see CPLR 3211 [g]; 3212 [h]) and by allowing awards of counsel fees and damages to a defendant targeted by a such a lawsuit (see Civil Rights Law § 70-a). When a defendant moves to dismiss a complaint under CPLR 3211 (g), it is the defendant’s initial burden to show that the lawsuit is indeed a SLAPP suit … . If that burden is met, the motion to dismiss must be granted unless the plaintiff can demonstrate that its action has “a substantial basis in law, which requires such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . Under this unique framework, “which is, in effect, an accelerated summary judgment procedure” … , a court is required to consider the pleadings as well as affidavits submitted by the parties setting forth the relevant facts (see CPLR 3211 [g] [2]). * * *

As for the question of whether the instant action constitutes a SLAPP suit, we find that it does. * * *

… [T]he burden shifted to plaintiff to demonstrate that its defamation claim had a substantial basis in law. In an effort to satisfy this burden, plaintiff asserted that five of the claims contained within the published statement were false. Supreme Court disagreed, siding with defendants’ position that each of the contested claims was either truthful or a nonactionable expression of opinion. We concur with the court relative to all but one of the claims. A portion of the statement indicated that plaintiff “wants to replace 8,600 square feet of dock . . . with 34,000 feet of commercial marina for 93 motorized boat slips. That’s a four-fold increase.” … [T]he record reveals that, in arriving at those figures, [defendant] used inconsistent measurements. … [W]e are satisfied that plaintiff met its corresponding burden of establishing that part of its defamation claim had a substantial basis in law, and as a result defendants’ motions to dismiss should have been denied to the extent of allowing the defamation claim to proceed as to that one statement. USL Mar., LLC v Adirondack Wild: Friends of the Forest Preserve, 2026 NY Slip Op 00953, Second Dept 2-18-26

Practice Point: Consult this opinion for insight into how the expedited summary-judgment procedure works for a lawsuit that meets the criteria for a strategic lawsuit against public participation (SLAPP). Here plaintiff met its burden to proceed on one allegedly defamatory statement.

 

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THE MOTION TO INTERVENE BY AN INSURER SEEKING SUBROGATION FOR A CLAIM ALREADY PAID IN THIS VEHICLE-ACCIDENT CASE WAS TIMELY UNDER THE RELATION-BACK DOCTRINE; THE PAID CLAIM STEMMED FROM THE ACCIDENT WHICH IS THE SUBJECT OF THE ONGOING LITIGATION; THE MOTION TO INTERVENE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer, Utica, which paid out $775,000 to plaintiff under an uninsured motorist policy purchased by plaintiff’s employer, was entitled intervene seeking subrogation in a lawsuit stemming from the same accident. Although the motion to intervene was untimely, it should have been granted under the relation-back doctrine. Plaintiff was struck by a vehicle while working at a construction site:

… Utica’s subrogation cause of action is not time-barred, as it merely seeks reimbursement for coverage tendered for the plaintiff’s personal injuries. This cause of action arises out of the same occurrence that gave rise to the plaintiff’s causes of action and includes the same questions of liability related to the accident. It is, therefore, similar enough to the plaintiff’s causes of action that the defendants were thereby placed on notice of the insurer’s claim … . * * *

“‘Subrogation is the principle by which an insurer, having paid losses of its insured, is placed in the position of its insured so that it may recover from the third party legally responsible for the loss'” … . “Subrogation is an equitable doctrine that allows an insurer to ‘stand in the shoes of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse'” … . “Thus, the insurer can only recover if the insured could have recovered and its claim as subrogee is subject to whatever defenses the third party might have asserted against its insured” … .

Here, Utica’s cause of action for subrogation has common questions of law and fact with the plaintiff’s causes of action, as Utica concedes that the proposed complaint “mirrors, in all respects, the complaint in the within suit.” By intervention, Utica stands in the shoes of the plaintiff. Utica would be bound by the judgment in this case and, without intervention, its interests are not represented. Further, there would be no prejudice to the defendants, as intervention would not cause delay, a need for additional discovery, or motion practice. Steward v Brooklyn Pier 1 Residential Owner, LP, 2026 NY Slip Op 00933, Second Dept 2-18-26

Practice Point: Here the relation-back doctrine was applied to render a motion to intervene timely.

Practice Point: Consult this decision for insight into the criteria for a subrogation action.

 

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PLAINTIFF WAS INJURED WORKING UNDER GTLF’S SUPERVISION; GTLF HAD HIRED ATRIUM, PLAINTIFF’S GENERAL EMPLOYER, TO HANDLE CERTAIN ASPECTS OF PLAINTIFF’S EMPLOYMENT, INCLUDING PAYROLL AND WORKERS’ COMPENSATION INSURANCE; PLAINTIFF RECEIVED WORKERS’ COMPENSATION BENEFITS FROM ATRIUM FOR A WORK-RELATED INJURY; GTLF, AS PLAINTIFF’S SPECIAL EMPLOYER, CANNOT BE SUED IN NEGLIGENCE BY PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined GTLF was plaintiff’s special employer and Atrium was plaintiff’s general employer. The Workers’ Compensation Board determined plaintiff was entitled to Workers’ Compensation benefits from Atrium, his general employer, for a work-related injury. Therefore, plaintiff could not sue GTLF, his special employer, in negligence based upon that work-related injury. GTLF was entitled to summary judgment:

For purposes of the Workers’ Compensation Law, a person may be deemed to have more than one employer—a general employer and a special employer … . “The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … .

“In determining whether a special employment relationship exists, ‘who controls and directs the manner, details and ultimate result of the employee’s work’ is a ‘significant and weighty feature,’ but is not determinative of the issue” … . Indeed, “[m]any factors are to be considered when deciding whether such a special employment relationship exists and not one factor is decisive” … . Other principal factors to be considered include “who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business” … . General employment will be presumed to continue unless there is a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … .

Here, in addition to a transcript of the plaintiff’s deposition testimony and a copy of the agreement between GTLF and Atrium, GTLF submitted an affidavit of its CEO, who averred, among other things, that after GTLF retained Atrium for “certain aspects of [the] plaintiff’s employment, including payroll and Workers’ Compensation insurance . . . [GTLF] maintained the same supervision and control of the plaintiff regarding his duties as a” brand ambassador. Based upon this evidence, GTLF established, prima facie, that GTLF was the plaintiff’s special employer … . Samuel v Petainer, 2026 NY Slip Op 00925, Second Dept 2-18-26

Practice Point: Consult this decision for insight into how to determine whether an employer is a general employer or a special employer for purposes of Worders’ Compensation benefits. If a worker receives Workers’ Compensation benefits from the worker’s general employer for a work-related injury, the employee cannot sue the special employer in negligence for that same injury.

 

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THIS LAWSUIT BY AN EMPLOYER AGAINST AN EMPLOYEE WHO ALLEGEDLY USED PLAINTIFF’S PROPRIETARY INFORMATION AFTER RESIGNING PRESENTS FACT-SPECIFIC ISSUES IN THE CONTEXT OF RESTRICTIVE COVENANTS IN THE EMPLOYMENT CONTRACT, COPYRIGHT LAW (PRE-EMPTION OF STATE LAW CLAIMS), TRADE SECRETS, AND THE PROPRIETY OF A PRELIMINARY INJUNCTION; ALL OF THESE COMPLEX ISSUES CANNOT BE FAIRLY SUMMARIZED HERE; THE DECISION IS WORTH CONSULTING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Copyright Act pre-empted some but not all of plaintiff’s breach of confidentiality and breach of employment contract claims, defendants’ cross-motions to dismiss sounding in unfair competition should not have granted; the complaint stated a cause of action for unfair competition based on misappropriation of proprietary information; the complaint stated a cause of action for violation of a restrictive covenant prohibiting disclosure of trade secrets; the record was insufficient to support Supreme Court’s ruling that plaintiff engaged in overreaching to obtain the restrictive covenants; and plaintiff’s motion for a preliminary injunction should have been granted. These complex, fact-specific issues cannot be fairly summarized here. With regard to pre-emption and the preliminary injunction, the court wrote:

“Section 301 of the Copyright Act preempts a state law claim if: ‘(i) the work at issue comes within the subject matter of copyright and (ii) the right being asserted is equivalent to any of the exclusive rights within the general scope of copyright'” … . Section 106 of the Copyright Act provides copyright owners the exclusive rights, among other things, to reproduce a copyrighted work, to prepare derivative works, to distribute copies of the work to the public, and to display the work publicly … . “A state law right is equivalent to one of the exclusive rights of copyright if it may be abridged by an act which, in and of itself, would infringe one of the exclusive rights” … . A claim is not equivalent “if an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action,” and in such circumstances, there is no preemption … . Here, contrary to the defendants’ contentions, the plaintiff sufficiently alleged an extra element—violation of a duty of confidentiality and breach of the employment agreement—in addition to acts of reproduction, adaptation, performance, distribution, or display, that renders the state right qualitatively distinct from the federal right, thereby foreclosing preemption … . * * *

To obtain a preliminary injunction, the moving party must establish, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor” (… see CPLR 6301). Here, the plaintiff showed that trade secrets existed and established a likelihood of success on the merits … . Premium Prods., Inc. v O’Malley, 2026 NY Slip Op 00918, Second Dept 2-18-26

Practice Point: Consult this decision for insight into the wide range of issues raised by the allegation that a former employee has appropriated and used the employer’s proprietary information after resigning.​

 

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THE JUDGE’S QUESTIONING OF WITNESSES, GUIDANCE OF THE PROSECUTION, AND OBVIOUS BIAS IN FAVOR OF THE PROSECUTION DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the evidence supported the convictions but the judge’s questioning of witnesses and obvious bias in favor of the prosecution deprived defendant of a fair trial. The issue was not preserved for appeal but the Second Department considered it in the interest of justice:

“‘[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate the progress of trial, and, if necessary, to develop factual information,’ so long as the judge does not take on the function or appearance of an advocate” … . Here, the Supreme Court engaged extensively in its own areas of inquiry, asked numerous leading questions of the People’s witnesses, including the complainant and a police officer, as to their observations of the defendant, elicited identification testimony, and guided the prosecution at length in its questioning.

Viewing the record as a whole, the Supreme Court improperly took on the function and appearance of an advocate. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … , thus depriving the defendant of a fair trial … . People v Morales, 2026 NY Slip Op 00913, Second Dept 2-18-26

Practice Point: A judge’s involvement in a prosecution which rises to the level of an advocate for the prosecution’s case deprives a defendant of a fair trial.

 

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THE SECOND DEPARTMENT REVERSED SUPREME COURT AND FOUND THERE WAS “GOOD CAUSE” FOR THE 27-YEAR DELAY BETWEEN THE HOMICIDE AND DEFENDANT’S ARREST FOR MURDER (SECOND DEPT).

The Second Department, reversing Supreme Court, in a detailed full-fledged opinion by Justice Wan, determined defendant’s due process rights were not violated by a 27-year delay between the homicide and defendant’s arrest for murder. The opinion is necessarily fact-specific. The facts were analyzed using the “Taranovich factors” for determining whether a defendant’s right to a speedy trial or due process right to prompt prosecution has been violated. The facts are too complex to fairly summarize here:

“The Court of Appeals has articulated the following factors to consider when determining whether a defendant’s right to a speedy trial or due process right to prompt prosecution has been violated: (1) the extent of the delay, (2) the reason for the delay, (3) the nature of the underlying charge, (4) whether there has been an extended period of pretrial incarceration, and (5) whether there is any indication that the defense has been prejudiced by the delay” (hereinafter the Taranovich factors) (… see People v Taranovich, 37 NY2d 442, 445). “The Taranovich framework is a holistic one” … . Thus, “[n]o one factor or combination of the factors is necessarily decisive or determinative of the prompt prosecution claim, but rather the particular case must be considered in light of all the factors as they apply to it” … . “Where, as here, there has been a protracted preindictment delay over a period of years, the burden is on the prosecution to establish good cause” … . People v Grant, 2026 NY Slip Op 00910, Second Dept 2-18-26

Practice Point: Consult this decision for insight into how the “Taranovich factors” are applied to the facts to determine whether there is “good cause” for an extensive delay in prosecution, here 27 years.

 

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THE TOWN ZONING BOARD OF APPEALS MADE NO ATTEMPT TO ACCOMMODATE THE PROPOSED RELIGIOUS USE OF A SINGLE FAMILY HOME; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter to the town zoning board of appeals, determined the board made no attempt to accommodate the application for religious use of a single-family home. The application sought to change the use of the property from “one family” to “place of worship accessory to one family” (a synagogue):

“[W]hile religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made” … . “[E]ducational and religious institutions are presumed to have a beneficial effect on the community” … . “[T]his presumption can be rebutted ‘with evidence of a significant impact on traffic congestion, property values, municipal services and the like'” … .

Here, the record reflects that the Board denied the petitioner’s application without making any attempt to accommodate the proposed religious use … . Despite the conditions proposed by the petitioner to mitigate the impact on the surrounding community, the Board denied the petitioner’s application in its entirety, even though the proposed religious use could have been substantially accommodated … . Furthermore, the evidence, taken as a whole, was insufficient to rebut the presumed beneficial effect of the proposed religious use … . Matter of Sephardic Synagogue of Plainview v Byrne, 2026 NY Slip Op 00903, Second Dept 2-18-26

Practice Point: Although religious institutions are not exempt from zoning laws, greater flexibility in evaluating a petition for religious use is required. Here no attempt was made to accommodate the change of use from “one family” to “place of worship accessory to one family” and the matter was remitted to the zoning board of appeals for such consideration.

 

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THE YOUTH PART OF COUNTY COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT “EXTRAORDINARY CIRCUMSTANCES” WARRANTED GRANTING THE PEOPLE’S MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S PROSECUTION TO FAMILY COURT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, over a three-judge dissenting opinion, determined the youth part of County Court did not abuse its discretion in granting the People’s motion to prevent removal of the 17-year-old defendant’s prosecution to Family Court. Under the State’s Raise the Age legislation, the People’s motion to prevent removal to Family Court can be granted in “extraordinary circumstances:”

Although [county court] found that defendant and his accomplices entered the victim’s home with the intent to commit a robbery and, during the course of the robbery, struck the victim several times in the face with a shotgun, the court noted further that the violent nature of the alleged crimes was not by itself a basis for preventing removal on the ground of extraordinary circumstances. Rather, the court opined that it was also required to consider whether defendant was amenable to Family Court services. In that regard, the court found that defendant had several mental health diagnoses but, at the same time, had been receiving services for five years. Based on those considerations, the court concluded that the People had demonstrated extraordinary circumstances sufficient for the case to remain in the youth part.

The Appellate Division affirmed on the basis that defendant participated in a violent home invasion involving weapons and injuries to the victim, and that, despite the Family Court services provided to him over the five years of his involvement with the criminal justice system, he “made no appreciable positive response and continues to engage in escalating criminal behavior” … . Thus, the Appellate Division concluded that, “under the totality of the circumstances, and taking into account the mitigating factors and the substantial aggravating factors, the court did not abuse its discretion in determining that extraordinary circumstances exist warranting that this case remain in the youth part” … . People v Guerrero, 2026 NY Slip Op 00826, CtApp 2-17-26

Practice Point: Consult this opinion for insight into when “extraordinary circumstances” will justify granting the People’s motion to prevent removal of a 17-year-old’s prosecution from the youth part of County Court to Family Court.

 

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THE FINDING THAT MOTHER HAD ABUSED THE CHILDREN WAS BASED ON VIDEO EVIDENCE PURPORTING TO SHOW MOTHER’S EX-BOYFRIEND ABUSING ONE OF THE CHILDREN; THE COURT OF APPEALS REVERSED, FINDING THAT THE VIDEO EVIDENCE WAS NOT AUTHENTICATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the finding that mother had abused her daughter and son based entirely on videos purportedly showing mother’s former boyfriend abusing one of the children required reversal because the foundation evidence offered for the videos was insufficient: There was a three-judge dissenting opinion, and a separate two-judge dissenting opinion: The majority opinion is too detailed to fairly summarize here. The majority concluded the videos, which were procured by an FBI agent from a suspected child pornographer who had, in turn, procured the videos from a hacked security camera, were not authenticated:

The videos were not discovered in the family home or on any camera or computer belonging to D.K. [the ex-boyfriend] or M.H [mother]. Instead, in the course of an FBI investigation into persons suspected of trading child pornography, the agents executed a search warrant on B.W., who lived in Syracuse. In the course of questioning by FBI Agent Martin Baranski, B.W., though not under oath or in any sworn statement, said (according to Agent Baranski’s recollection) that he had been “hack[ing] into security web cameras for the past few years.” B.W. further stated that in 2019 he had “hacked into a security camera” which showed what he thought was an adult male sexually abusing the man’s 15-year-old stepdaughter. B.W. claimed that he “watched a lot of the security camera footage of this house” and saw “a lot” of interactions between the individuals depicted in the videos. He told Agent Baranski he had saved some videos from that camera in a particular location on his computer, along with a screenshot that contained details about the security camera login information, including a possible name, email and IP address.

Searching a digital copy of B.W.’s computer, Agent Baranski found three videos that appeared to show an adult male sexually abusing a young girl; the videos contained timestamps indicating they were recorded around the summer of 2019. Based on information from the screenshot on the suspect’s computer and other investigative work, Agent Baranski was able to identify D.K.’s name and workplace; he then relayed that information to New York law enforcement. * * *

The rules of evidence apply in Family Court just as much as they apply in any other court. The proponent of evidence bears the burden of demonstrating its authenticity … . … The failure to authenticate evidence sufficiently does not mean the evidence was false, but only that it was not properly authenticated according to the rules of evidence. … We do not mean to suggest that the videos here could not have been authenticated, or that child victims must testify, or that B.W., Agent Baranski, or some other person could not have offered adequate authentication testimony. But the evidence of authentication proffered here was legally insufficient. What that means for the next case is that in Family Court, as in all our courts, evidence must be properly authenticated. Matter of M.S. (M.H.), 2026 NY Slip Op 00825, CtApp 2-17-26

Practice Point: The rules of evidence apply equally in Family Court. Here the finding that mother abused the children was based entirely on video evidence. Because the video evidence was not authenticated, the abuse finding was reversed.

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE FOR “IMPAIRMENT” WHICH WAS APPLIED BY THE THIRD DEPARTMENT IN A RECENT VEHICULAR MANSLAUGHTER CASE; IT WAS NOT CLEAR THE “IMPAIRMENT” CHARGE IN THE VEHICULAR MANSLAUGHTER CASE WAS APPLICABLE IN THE INSTANT “DRIVING WHILE ABILITY IMPAIRED BY DRUGS” CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined that defense counsel was not ineffective for failing to request a jury instruction based upon a recent Third Department appellate decision [People v Caden N, 189 AD2d at 90-91] which was not clearly applicable. The Third Department had held that the standard for “impairment by drugs” in a vehicular manslaughter case was the higher standard used for “intoxication by alcohol” [a ruling rejected by Court of Appeals in People v Dondorfer, 2026 NY Slip Op 00823, CtApp 2-17-26]. T he charges in the instant case were “driving while ability impaired by drugs,” not vehicular manslaughter:

Defendant argues that Caden N. established a clear right within the Third Department to a jury charge in Vehicle and Traffic Law § 1192 (4) and (4-a) cases that defines impairment by drugs consistent with the higher standard of intoxication by alcohol from Cruz [48 NY2d at 422, 428]. But as the Third Department itself explained below, the holding and reasoning of Caden N. were carefully limited to the statutory scheme for vehicular manslaughter, and at the time of defendant’s trial, no court in this State had extended the reasoning of Caden N. to charges under Vehicle and Traffic Law § 1192 (4) or (4-a) … . Further, the model jury instructions—on which this Court has advised both counsel and trial courts to rely …—were not revised to account for Caden N. until December 2021, three months after defendant’s trial … . Even then, the CJI [Criminal Jury Instructions] Committee advised in an explanatory note that “Caden N. did not explicitly discuss whether the standard for impairment for purposes of a prosecution for [vehicular] manslaughter in the second degree was also the standard to be applied in a prosecution for only VTL 1192 (4),” and that, “until an appellate court decides otherwise,” a trial court may “decide to apply Caden N.’s definition of impairment for a vehicular manslaughter or assault charge and the impaired ‘to any extent’ definition for a VTL driving while impaired by the use of a drug or combination of [substances] charge” … . People v Ambrosio, 2026 NY Slip Op 00824, CtApp 2-17-26

Practice Point: Here defense counsel was not ineffective for failing to request a jury charge which was not clearly applicable to the offense.

 

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