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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

District Council No. 9 v. APC Painting, Inc.

Plaintiff District Council No. 9 (the Union) initiated this action under the Labor Management Relations Act to enforce several arbitration awards against APC Painting, Inc., its related APC and Apollo entities, and individual Gregory Fucci. The Union sought to confirm awards from the Joint Trade Committee (JTC) regarding violations of a collective bargaining agreement, including underpayment of wages and employment of non-union workers. Defendants moved to dismiss claims against Fucci and the Apollo entities, arguing non-participation in arbitration and denial of alter ego liability. Magistrate Judge Gorenstein denied the defendants' motion, allowing the alter ego theory to be pursued, and granted the Union's motion for partial summary judgment. The court confirmed the arbitration awards against the APC entities, affirming the limited judicial review of such awards and rejecting defendants' objections.

Labor LawArbitration AwardCollective Bargaining AgreementLMRA Section 301Alter Ego DoctrineCorporate Veil PiercingSummary JudgmentMotion to DismissWage ViolationsFringe Benefits
References
85
Case No. 2016-334 S C
Regular Panel Decision
Apr 27, 2017

2 & 9 Acupuncture, P.C. v. 21st Century Advantage Ins. Co.

This case concerns an appeal by 2 & 9 Acupuncture, P.C. from an amended order that granted summary judgment to 21st Century Advantage Insurance Company, dismissing a complaint to recover assigned first-party no-fault benefits. The defendant argued it had paid the plaintiff in accordance with the workers' compensation fee schedule. The Appellate Term, Second Department, reversed the lower court's decision, finding that the defendant failed to prima facie demonstrate proper denial of payment for services billed under CPT codes 97026 and 97016. Consequently, the defendant's motion for summary judgment regarding these specific CPT codes was denied.

No-Fault BenefitsSummary JudgmentCPT CodesWorkers' CompensationAppellate ReviewInsurance LawMedical BillingAcupunctureSuffolk CountyPayment Dispute
References
3
Case No. MISSING
Regular Panel Decision

Dimitropoulos v. Painters Union District Council 9

The plaintiff, Peter Dimitropoulos, sued District Council 9 of the International Brotherhood of Painters and Allied Trades ("DC-9") for age discrimination under the ADEA. He alleged the union improperly handled his grievance, failed to refer him to jobs, and wrongfully expelled him. The court found no evidence that the union's handling of his grievance or his expulsion after a fight were motivated by age. Crucially, regarding job referrals, the plaintiff admitted he failed to sign the required "out-of-work book," providing a legitimate, non-discriminatory reason for not receiving referrals. As the plaintiff failed to present a genuine issue of material fact showing intentional age discrimination, the court granted the defendant's motion for summary judgment, thereby dismissing the ADEA claim.

Age DiscriminationEmployment LawLabor Union LiabilitySummary Judgment MotionFederal Court CaseADEA ClaimJob Referral DiscriminationUnion Grievance ProcessMember ExpulsionDisparate Treatment
References
13
Case No. 9
Regular Panel Decision

Smith v. U.S. Army Corps of Engineers

Plaintiff Cynthia A. Smith, proceeding pro se, filed an employment discrimination action against the U.S. Army Corps of Engineers (USACE) and James Miller, alleging sex discrimination under Title VII and claims under the Federal Tort Claims Act (FTCA). Plaintiff claimed she was sexually harassed by Miller while working as a contractor during the Hurricane Katrina recovery efforts in Louisiana. Defendants moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. The court granted the motion, finding that Plaintiff was not a federal employee for Title VII purposes and had failed to exhaust administrative remedies. Additionally, the court concluded that the USACE was not the proper defendant under the FTCA and Plaintiff’s allegations did not meet the standard for intentional infliction of emotional distress under Louisiana law.

Employment DiscriminationSexual HarassmentTitle VIIFederal Tort Claims ActMotion to DismissSubject Matter JurisdictionFailure to State a ClaimIndependent ContractorAdministrative Remedies ExhaustionSovereign Immunity
References
39
Case No. MISSING
Regular Panel Decision

Aeolian Co. v. Fischer

This case involves a dispute where the defendant unions, primarily Organ Workers’ Local No. 9, sought to coerce the employment of union labor in New York City. They achieved this by persuading other crafts to refuse to work on sites where plaintiffs' nonunion employees were installing or maintaining organs. The court first found that the Sherman Act and Clayton Act did not apply because the impact on interstate commerce was incidental to a local objective. Subsequently, under New York common law, the court noted that a secondary boycott is not illegal per se and depends on malicious intent versus self-interest. Lacking sufficient facts to prove malicious intent over self-interest, the court denied the plaintiffs' motion for a preliminary injunction.

UnionizationSecondary BoycottLabor DisputeAnti-Trust LawCommon LawPreliminary InjunctionOrgan Workers UnionBuilding TradesNonunion LaborCoercion
References
8
Case No. MISSING
Regular Panel Decision

New Yorker Hotel Management Co. v. District Council No. 9 New York IUPAT

The New Yorker Hotel initiated a defamation action against District Council No. 9 New York IUPAT, a union representing painters. The lawsuit stemmed from handbills distributed by the union outside the hotel, which, in large bold print, declared the hotel "INFESTED WITH BED BUGS," but immediately clarified that "BED BUG IS DEFINED AS ONE WHO SUCKS THE FINANCIAL BLOOD FROM ITS WORKERS," referring to alleged non-payment of union-established wages and benefits to painters. Defendant moved for summary judgment, arguing that the handbills' use of "bedbugs" was metaphorical and constituted protected speech in a labor dispute, and that the plaintiff failed to demonstrate actual malice. The court granted summary judgment to the defendant, finding that the handbills, when read in their full context, unambiguously conveyed a figurative meaning, making it clear that the statement was not an assertion of fact but rather "immoderate rhetoric often associated with labor disputes." Consequently, the complaint, including a request for preliminary injunction, was dismissed, as the allegations of oral statements also lacked the necessary specificity for a defamation claim.

DefamationLabor DisputeSummary JudgmentProtected SpeechUnion RightsFigurative LanguageActual MaliceFirst AmendmentNew York LawPleading Standards
References
33
Case No. MISSING
Regular Panel Decision

Barbot v. Frackman

Plaintiffs, identified as beneficiaries of the Local 19-9 Pension Trust, initiated an action alleging violations of the Labor Management Relations Act, 29 U.S.C.A. § 186, stemming from the alleged improper appointment and control of the trustee, Leonard M. Frackman, by Local 199, as well as claims of unreasonable fees and non-compliance with the Welfare and Pension Plan Disclosure Act of 1959. Defendants, including Henry M. Moses and Better Electric Company, moved to dismiss the complaint, challenging the plaintiffs' standing and the court's jurisdiction. The court denied the case's classification as a class action, allowing it to proceed on individual claims. Finding substantial issues of fact regarding the trustee's status and the extent of union control over the trust, the court denied both parties' cross-motions for summary judgment. Furthermore, the plaintiffs' application for a preliminary injunction was denied due to an insufficient showing of probable success or irreparable harm.

Labor Management Relations ActPension Trust LitigationTrustee AccountabilitySummary Judgment DenialPreliminary Injunction DenialClass Action SuitEmployee StandingUnion Control of FundsWelfare and Pension Plan Disclosure ActFederal Civil Procedure
References
12
Case No. MISSING
Regular Panel Decision

Endico v. Fonte

Plaintiff Michael Endico sued Mark and William Fonte and their entities, alleging fraudulent inducement to transfer a two-thirds interest in 9 South First Avenue Associates, LLC, without payment, and subsequent asset looting. Endico's sole basis for federal jurisdiction was a claim under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, arguing that the membership interests were 'securities.' The court denied Endico's motion for a preliminary injunction and granted the defendants' motion to dismiss. The court found it highly doubtful that Endico would succeed in proving the membership interests were 'securities' under the Exchange Act, as he retained significant control, including sole signatory power over the company's checking account and veto power over asset sales/encumbrances. Therefore, the federal claims were dismissed for lack of subject matter jurisdiction, without prejudice to refiling in state court.

Securities Exchange ActRule 10b-5Investment ContractW.J. Howey TestPreliminary InjunctionMotion to DismissSubject Matter JurisdictionFraudulent InducementPassive InvestorLLC Membership Interest
References
20
Case No. ADJ7781989; ADJ8262771
Regular
Oct 03, 2013

MIRIAN GARCIA vs. COOPER COLD FOODS, INC., ILLINOIS MIDWEST INSURANCE AGENCY as administrator for STAR INSURANCE COMPANY

The Workers' Compensation Appeals Board (WCAB) is granting reconsideration of its own prior decision and rescinding a July 23, 2013 decision that had overturned a prior finding of 2% permanent disability for applicant's right knee injury. The WCAB determined that its August 9, 2012 order granting reconsideration was improvidently granted because the applicant had already filed a successive and improper petition for reconsideration. Consequently, the prior order and the subsequent rescinded decision are vacated, and the applicant's petition for reconsideration is dismissed.

WCABReconsiderationPetition for ReconsiderationFindings and AwardAdministrative Law JudgePermanent DisabilityIndustrial InjurySuccessive PetitionImprovidently GrantedVacated
References
4
Case No. MISSING
Regular Panel Decision

Claim of Velji v. Rural Farms Workers Opportunity

The employer and its carrier appealed a Workers’ Compensation Board decision from June 9, 1982, which denied their request for reimbursement of wages paid to a claimant during a disability period. The carrier had filed C-9 forms indicating lost time, full wages paid, and specifically requested reimbursement. The Board denied this, asserting that a C-9 form could not be used for a reimbursement claim, thereby adding an unauthorized limitation to Section 25 (subd 4, par [a]) of the Workers’ Compensation Law. The court found the Board’s rationale irrational, especially since the C-9 forms explicitly requested reimbursement. The court reversed the Board’s decision and remitted the matter for further proceedings.

Workers' Compensation LawReimbursement ClaimWage PaymentStatutory InterpretationC-9 FormAppellate ReviewBoard Decision ReversalEmployer RightsCarrier ReimbursementDisability Benefits
References
5
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