Following the racist mass murder of 10 black individuals at a grocery store in Buffalo by a teenager motivated by the Great Replacement Theory, which has circulated on social media and the Internet and “posits that white populations in Western countries are being deliberately replaced by non-white immigrants and people of color,” survivors of the shooting and family members of the victims sued numerous social media companies, alleging that the intentional designs of the social media algorithms fed the shooter racist content that caused him to commit murder. The Appellate Division, Fourth Department, in a split 3-2 opinion, dismissed the complaint as barred by the First Amendment and Section 230 of the Communications Decency Act. Let’s take a look at that opinion and what else has been happening in New York’s appellate courts over the past week.
Appellate Division, First Department
Matter of R.A. (A.R.), 2025 NY Slip Op 04295 (1st Dept July 24, 2025)
Family Law, Supervision of Nonrespondent Parent
Issue: May Family Court order that the Administration for Children’s Services to supervise a nonrespondent parent who was already caring for their child prior to the filing of the Family Court Act article 10 petition?
Facts: “By petition dated January 3, 2024, ACS alleged that respondent father neglected the child by committing acts of domestic violence against the nonrespondent mother in the child’s presence. The petition specifically alleged that the mother told the father that she did not want to be in a relationship with him anymore, and the father grabbed the mother by the face, causing her to fall to the ground, hit her, stomped her, and strangled her until she briefly lost consciousness in front of their then 14-month-old child. A neighbor called 911, and when the responding officers knocked on the door of the apartment, the father grabbed a knife and threatened to kill the mother if she spoke to them.”
At an initial hearing, Family Court ordered that the child be temporarily “released” to “the mother pursuant to section 1017 of the Family Court Act, even though the child had never been removed from the mother’s care . . . No one expressed safety concerns about the mother or the condition of her home. Indeed, there was no dispute that she is ‘a good mother’ and ‘very strong [and] hard-working.’” This all occurred before the nonrespondent mother appeared at the hearing, and the Court never asked the mother if she consented.
Family Court’s written order provided “that the child was released to the mother ‘under ACS supervision,’ although that had not been discussed on the record in the mother’s presence. ACS acknowledged that it is the Agency’s ‘standard procedure’ to monitor the nonrespondent parent’s care of a child through ACS supervision until Family Court issues a fact-finding order in a proceeding pursuant to article 10 of the Family Court Act.”
After five months during which ACS visited the mother’s home over 15 times, both announced and unannounced, during which “the caseworker searched every room in the mother’s home, inspected the contents of her refrigerator, and closely inspected the child’s body,” the mother moved to vacate the portion of the Family Court order that required ACS supervision. The mother asserted that the “multiple announced and unannounced caseworker visits and surveillance of the intimate aspects of the family’s daily life” were traumatizing and reminded her of the “fear and anxiety” of the domestic abuse she suffered at the hands of the father. And, she argued, they were not authorized by “Family Court Act §§ 1017 or 1027 because an order of supervision may only be issued in the context of the child’s physical removal from a home or a caregiver. She also argued that the supervision order violated her Fourth Amendment rights, as both her home and her child’s body were subjected to repeated announced and unannounced searches and inspections by ACS during the supervision period, despite the agency having no reason to believe that the child was being neglected or that the conditions of the home were unsafe. Finally, she argued that the order violated her right to substantive due process because ACS was allowed to interfere with her parenting of the child in her home without any suspicion or allegation of harm, despite maintaining a position that the mother was a fit parent.”
Family Court granted the mother’s motion on ACS’s consent, without addressing any of the mother’s legal arguments.
Holding: The First Department affirmed, using this case to explain that ACS’s standard operating procedure to “monitor the nonrespondent parent’s care of a child through ACS supervision until a determination of an article 10 [neglect] proceeding” is not authorized by the Family Court Act. In particular, the Court explained, “provisions of Family Court Act § 1017 (3), which require the nonrespondent parent to submit to the court’s jurisdiction and authorize the court to order ACS supervision over that parent, are not triggered when the child remains in the home with the nonrespondent parent, and the Family Court has no authority to impose supervision or its equivalent over that parent.” Nor does section 1017 “apply indirectly through Family Court Act § 1027(d) to permit the court to impose supervision on a nonrespondent parent in whose care the child remains, because Family Court Act § 1027(a) requires that a hearing be held to determine ‘whether the child’s interests require protection’ before Family Court may ‘release’ a child to a nonrespondent parent.” Here, there was no hearing, nor could section 1027 have ever applied because the child was never removed from the nonrespondent mother’s care.
Finally, the Court rejected ACS’s arguments that if sections 1017 and 1027 do not authorize the imposition of supervision of nonrespondent parents, then the courts will be constrained from issuing orders to ensure the child’s safety. The Court reasoned, first, when the nonrespondent parent agrees to cooperate with supervised visitation for the respondent parent or the attorney for the child, there is no need for a court order to compel her to do so. And second, the Court reasoned, the ACS’s standard operating procedure, particularly in cases of domestic abuse, presumed that the nonrespondent parent was unfit and needed supervision to keep the child safe. That was backwards, the Court held: “ACS fails to demonstrate how surveilling and directing the nonrespondent parent in such cases would make that parent or the child any safer. Rather, as the mother and Sanctuary for Families note, ACS’s policy of insisting on supervision in such cases reinforces the coercive control underpinning abusive relationships, turns survivors into suspects, and requires the nonrespondent parent to answer for the respondent parent’s abusive behaviors . . . Essentially, the ACS policy at issue in this case permits it to surveil the mother simply because the child’s father committed acts of domestic violence against her. We cannot condone a policy based on this faulty and unlawful premise.”
Appellate Division, Second Department
Angelic Real Estate, LLC v Aurora Props., LLC, 2025 NY Slip Op 04223 (2d Dept July 23, 2025)
Contract Law, Real Estate Broker Commission, Exclusive Right to Sell
Issue: May a real estate broker obtain a commission under an “exclusive right to sell” agreement outside the context of transactions involving the sale or lease of real property?
Facts: “Aurora Properties, LLC, entered into an agreement with the plaintiff, Angelic Real Estate, LLC, a licensed real estate broker specializing in obtaining financing for commercial properties, for the plaintiff to secure certain financing on the defendant’s behalf. The two-page letter agreement dated June 8, 2020, stated that the defendant was engaging the plaintiff ‘exclusively’ to obtain debt financing for multiple office buildings located in Tennessee.” In particular, the parties’ agreement provided:
“[I]f under this Agreement [the plaintiff] does not secure, on or before June 20, 2020, one or more written quotes or terms sheets from lenders [with the desired terms], this Agreement shall remain in place but shall become non-exclusive with regards to any lenders not already approached and engaged by [the plaintiff]. In such instance, [the plaintiff] shall provide [the defendant] a list of its protected lenders it has gone to for the Properties . . . by the end of the next business day. Should [the plaintiff] subsequent to that date secure such terms with a lender on the [list], or with another lender who has not already provided a terms sheet to [the defendant], either directly or via another intermediary, the exclusivity clause of this Agreement shall be reinstated.”
The agreement was to last for 120 days following its execution, but contained an exclusion from its commission provision if a term sheet was signed on or before June 30, 2020 with any of three specified lenders.
Defendant ultimately obtained financing from one of the three specified lenders, Mountain Commerce Bank, in a term sheet signed on August 21, 2020. “The plaintiff allegedly informed the defendant that if MCB entered into a terms sheet before the expiration of the agreement and after the exclusion period, i.e., June 30, 2020, the plaintiff would be entitled to a fee under the agreement. The defendant subsequently closed on the loan with MCB and did not tender a fee to the plaintiff.”
When defendant refused to pay the fee that plaintiff demanded, plaintiff commenced this action for breach of the agreement. The parties both moved for summary judgment, and Supreme Court granted defendant’s motion, dismissing the complaint. The Court held that “notwithstanding the fact the agreement’s exclusion provision expired on June 30, 2020, given the lack of clear exclusivity in the agreement, the plaintiff was not entitled to receive a fee for a loan negotiated and secured solely by the defendant.”
Holding: The Second Department affirmed, explaining that “there is a distinction between brokerage agreements granting an exclusive agency and those conferring an exclusive right to sell, the latter of which permits a broker to recover a commission even if it was not the procuring cause of the transaction.” “In general, pursuant to an exclusive agency agreement, if the owner finds its own buyer, then no commission is due to the broker. In other words, where a broker has been granted an exclusive agency, the seller cannot employ another broker, but would not be precluded from itself making the sale without becoming liable to the broker for a commission. In contrast, if a broker has been granted an exclusive right to sell, the broker would be entitled to a commission even if the owner were solely responsible for the sale. Agreements have been construed as conferring an exclusive right to sell in instances where there was clear and express language providing that a commission was owed regardless of whether the broker was the procuring cause of the transaction, the owner was precluded from independently negotiating a sale, or all inquiries or offers were required to be referred to the broker.”
The Court, relying on Court of Appeals’ precedent, explained, “the rule requiring a clear statement to confer an exclusive right of sale is not limited to real estate brokerage agreements. In rejecting the plaintiff’s argument seeking to apply such a limitation, the Court of Appeals stated that it saw no reason to apply a different rule to brokerage contracts concerning the sale of financial instruments in the investment banking context, noting that, in both cases, the governing principles arise from the law of agency and contract, not from the law of real property. The same reasoning has been applied in the context of brokerage agreements to secure financing.”
Here, the Court held, defendant demonstrated that “the plaintiff did not secure a lender or loan with conforming terms on behalf of the defendant before June 20, 2020. Further, the defendant demonstrated that the plaintiff was not entitled to a commission for the loan the defendant independently obtained from MCB in August 2020. The agreement did not clearly and expressly provide the plaintiff with the exclusive right to deal or negotiate on the defendant’s behalf. The defendant also demonstrated that the plaintiff was not the procuring cause of the loan from MCB.” Thus, under the clear terms of the parties’ agreement, defendant was entitled to judgment dismissing the complaint.
Appellate Division, Fourth Department
Patterson v Meta Platforms, Inc., 2025 NY Slip Op 04447 (4th Dept July 25, 2025)
Torts, First Amendment, Social Media
Issue: May social media companies be held liable as product designers, rather than publishers of third-party racist content, for designing addictive platforms that ultimately caused an individual to commit mass murder?
Facts: Following “the mass shooting on May 14, 2022 at a grocery store in a predominately Black neighborhood in Buffalo” that was “motivated by the Great Replacement Theory, which posits that white populations in Western countries are being deliberately replaced by non-white immigrants and people of color,” survivors of the attack and family members of those killed sued, among many others, “the so-called ‘social media defendants,’”—Facebook, Instagram, Snap, Alphabet, Google, YouTube, Discord, Reddit, Twitch, Amazon, and 4chan, all of whom have social media platforms that were used by the shooter at some point before or during the attack. The complaints alleged various tort claims against them, including “negligence, unjust enrichment and strict products liability based on defective design and failure to warn. According to plaintiffs, the social media platforms in question are defectively designed to include content-recommendation algorithms that fed a steady stream of racist and violent content to the shooter, who over time became motivated to kill Black people.” The complaint also alleged that the algorithms, and the social media platforms themselves, are designed to be addictive and “designed to stimulate engagement by exploiting the neurological vulnerabilities of users like the shooter and thereby maximize profits.”
The social media defendants moved to dismiss the complaints, arguing that they are immune from liability under section 230 of the Communications Decency Act and the First Amendment. Supreme Court denied the motions, and the social media defendants appealed.
Holding: The Fourth Department, in a 3-2 opinion surely headed next to the Court of Appeals, reversed, and dismissed the complaints insofar as asserted against the social media defendants. On appeal, the plaintiffs conceded that the abhorrent racist content consumed by the shooter on the Internet is constitutionally protected under the First Amendment, and that pursuant to section 230 and the First Amendment, the social media defendants could not be liable for publishing the racist third-party content that the shooter consumed and motivated him to commit mass murder. Plaintiffs nevertheless argued that “the social media defendants are not entitled to protection under section 230 because the complaints seek to hold them liable as product designers, not as publishers of third-party content.” The Fourth Department disagreed, holding that “section 230 affords immunity to the social media defendants from plaintiffs’ tort causes of action against them. In our view, a contrary ruling would be inconsistent with the language of section 230 and eviscerate the expressed purpose of the statute.”
As the United States Supreme Court has held, the Internet is the most important public square in our modern digital society, and “section 30 is the scaffolding upon which the Internet is built. Enacted by Congress in 1996 to ‘preserve the vibrant and competitive free market’ for the Internet (47 USC § 230 [b] [2]), the statute immunizes providers of interactive computer services from civil lawsuits arising from user-generated content published on their platforms.” In light of its purpose to encourage the free exchange of ideas on the Internet without government regulation, section 230 is construed broadly in favor of immunity. The Court further explained, “[w]ith respect to state law claims, section 230 protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.”
Here, the Court held, the complaints sought to hold the social media defendants liable as publishers of third-party content, and “he content-recommendation algorithms used by some of the social media defendants do not deprive those defendants of their status as publishers of third-party content. It follows that plaintiffs’ tort causes of action against the social media defendants are barred by section 230.” Even if the social media platforms could be construed as inherently dangerous products, “which is a rather large assumption indeed,” the Court held, because the strict products liability claims were based on the nature of the third-party content, section 230 afforded the social media defendants immunity. The mere fact that the social media algorithms arranged and displayed third-party racist content was not enough to transform the social media defendants into the developers or creators of that racist content beyond section 230’s protection.
Therefore, the Court explained, “content-recommendation algorithms are simply tools used by social media companies “to accomplish a traditional publishing function, made necessary by the scale at which providers operate. Every method of displaying content involves editorial judgments regarding which content to display and where on the platforms. Given the immense volume of content on the Internet, it is virtually impossible to display content without ranking it in some fashion, and the ranking represents an editorial judgment of which content a user may wish to see first. All of this editorial activity, accomplished by the social media defendants’ algorithms, is constitutionally protected speech. Thus, the interplay between section 230 and the First Amendment gives rise to a “Heads I Win, Tails You Lose” proposition in favor of the social media defendants. Either the social media defendants are immune from civil liability under section 230 on the theory that their content-recommendation algorithms do not deprive them of their status as publishers of third-party content, . . . or they are protected by the First Amendment on the theory that the algorithms create first-party content . . . Of course, section 230 immunity and First Amendment protection are not mutually exclusive, and in our view the social media defendants are protected by both. Under no circumstances are they protected by neither.”
“We believe that the motion court’s ruling, if allowed to stand, would gut the immunity provisions of section 230 and result in the end of the Internet as we know it. This is so because Internet service providers who use algorithms on their platforms would be subject to liability for all tort causes of action, including defamation. Because social media companies that sort and display content would be subject to liability for every untruthful statement made on their platforms, the Internet would over time devolve into mere message boards.”
The dissenting Justices, in contrast, would have concluded that the “plaintiffs’ collective strict products liability causes of action predicate liability on the allegedly defective design of the platforms themselves—and the concomitant failure to warn of the risks of addiction in young people—[and therefore] do not seek to hold defendants liable for any third-party content; thus, we conclude that those causes of action do not implicate section 230 of the Communications Decency Act or the First Amendment. Even if section 230 were implicated, however, we conclude that the use of an algorithm to push disparate content to individual end users constitutes the ‘creation or development of information,’ which could subject defendants to liability, and is not the type of editorial or publishing decision that would fall within the ambit of section 230.”
New York Appeals 