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

Case No. 2017 NY Slip Op 00959 [147 AD3d 815]
Regular Panel Decision
Feb 08, 2017

Gonsalves v. 35 W. 54 Realty Corp.

The plaintiffs, Andrew Gonsalves and Shahazad M. Rasheed, sustained personal injuries at a construction site managed by Geiger Construction Company, Inc. and owned by 35 W. 54 Realty Corp. when a parapet wall collapsed during the lowering of a power washer. They sued 35 W. 54 Realty Corp. and Perimeter Bridge & Scaffold Co. for Labor Law violations. 35 W. 54 Realty Corp. then initiated third-party actions against Geiger Construction for contribution and common-law indemnification. After a jury found Geiger Construction negligent, the Supreme Court denied Geiger Construction's motions for judgment as a matter of law. The Appellate Division, Second Department, reversed these judgments, concluding that there was no rational basis for the jury to find Geiger Construction negligent, as 35 W. 54 Realty Corp. failed to establish a prima facie case of negligence against them. Consequently, the third-party causes of action against Geiger Construction were dismissed.

Personal InjuryConstruction AccidentLabor LawNegligenceContributionIndemnificationThird-Party ActionAppellate ReviewJudgment as a Matter of LawJury Verdict
References
7
Case No. MISSING
Regular Panel Decision

Local 54 United Paperworkers International Union

Local 54 United Paperworkers International Union appealed a decision by the Unemployment Insurance Appeal Board, which found the union liable for unemployment insurance contributions for payments made to its officers engaging in union activities during work hours. The union contended that its officers were not employees and that New York's unemployment insurance laws were preempted by the National Labor Relations Act. The court concluded that substantial evidence supported the Board's finding of an employer-employee relationship, citing expense reimbursements, tax withholdings, and W-2 form issuances by the union. Furthermore, the court ruled that the National Labor Relations Act did not preempt the state's unemployment insurance statute, categorizing the union's preemption argument as a peripheral concern to the federal act, while upholding state authority over unemployment compensation programs. Consequently, the Board's decision was affirmed.

Unemployment InsuranceEmployee-Employer RelationshipUnion OfficersPreemptionNational Labor Relations ActState LawCompensationWorkers' Compensation BoardDisability Benefits LawNew York
References
18
Case No. 99-11240 B, 08-CV-774A, Adv. No. 01-1193B
Regular Panel Decision
Nov 01, 2010

McHale v. Boulder Capital LLC (In Re 1031 Tax Group, LLC)

This memorandum opinion addresses the calculation of prejudgment interest on fraudulent transfer claims recovered by Gerard A. McHale, Jr., P.A., as Trustee for the 1031 Debtors Liquidation Trust, against the Boulder Defendants. The Court determined that three transfers in 2005 and 2006 were fraudulent under section 548(a) of the Bankruptcy Code. It concludes that the Trustee is entitled to prejudgment interest from the adversary proceeding commencement date, March 20, 2009, at the bank prime loan rates in effect on the dates of each transfer (6.5%, 8.0%, and 8.25%). Additionally, the Trustee is entitled to post-judgment interest at the federal judgment rate, and a final judgment is to be entered pursuant to Federal Rule of Civil Procedure 54(b).

Prejudgment InterestFraudulent TransferBankruptcy CodeAdversary ProceedingFederal Judgment RateMarket Rate InterestPrime RateRule 54(b) JudgmentTrustee RecoveryBankruptcy Court
References
26
Case No. MISSING
Regular Panel Decision
Oct 12, 1990

North Fork Environmental Council, Inc. v. Janoski

This case involves a CPLR article 78 proceeding to challenge the Town Board of Riverhead's determination to grant a special permit for a condominium development to Mill Pound Commons. The petitioner argued that the environmental impact statements were defective because the Town Board failed to consider the cumulative environmental effects of the project with other proposed projects in the Saw Mill Creek basin and did not consider archaeological impacts. The Supreme Court, Suffolk County, affirmed the Town Board's decision, finding that the projects were not "reasonably related" for a mandatory cumulative impact review and that archaeological impacts were not raised or supported during the review process. The court emphasized that a Critical Environmental Area designation alone does not mandate a cohesive framework for cumulative impact review and that new issues cannot be raised after the completion of the Environmental Impact Statement process.

Environmental Impact StatementSEQRACumulative Impact ReviewSpecial PermitCondominium UseTown Board DeterminationCritical Environmental AreaArchaeological ResourcesPublic CommentCPLR Article 78
References
4
Case No. ADJ7258268
Regular
Dec 20, 2013

PATRICIA SMITH vs. WELLPOINT HEALTH NETWORKS, INC.; and ZURICH NORTH AMERICA INSURANCE CO.

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration, upholding the original award. The Board found substantial evidence supported the necessity of a Jenny Craig weight loss program, including special diet food products, as reasonably necessary treatment. This was based on the applicant's need to lose weight for industrial back surgery and the program's proven success, evidenced by the applicant's 54-pound weight loss. The Board adopted the administrative law judge's report and recommendation in its entirety.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationDENIEDJenny Craigweight loss programspecial diet food productsreasonably necessary treatmentindustrial back surgerysubstantial evidencemedical treatment
References
2
Case No. MISSING
Regular Panel Decision

Gardner v. Catering by Henry Smith, Inc.

Plaintiffs Kevin Gardner and Pierre Vogelsang sued defendants Catering by Henry Smith, Incorporated and Henry H. Smith for unpaid overtime wages and unused vacation time, alleging violations of the Fair Labor Standards Act and New York Labor Law. The plaintiffs accepted a Rule 68 offer of judgment from the defendants. Subsequently, the plaintiffs moved to recover attorneys' fees and costs pursuant to Rule 54 of the Federal Rules of Civil Procedure. The Court found that the motion for attorneys' fees was filed after the 14-day deadline stipulated by Rule 54, and no justification for the delay was provided. Similarly, the motion for costs was filed beyond the 30-day period set by S.D.N.Y. & E.D.N.Y. Local Civil Rule 54.1(a) without good cause. Therefore, the Court denied both motions.

Overtime WagesUnused Vacation TimeFLSANew York Labor LawFederal Rules of Civil Procedure Rule 68Federal Rules of Civil Procedure Rule 54Attorneys' FeesCostsTimelinessFinal Judgment
References
7
Case No. ADJ6675477
Regular
Aug 14, 2015

ULISSES CANALES vs. BERT WILLIAMS \& SONS, INC.; BERKSHIRE HATHAWAY

The Workers' Compensation Appeals Board denied Ulisses Canales' petition for reconsideration. Canales sought to overturn a finding of 54% permanent disability, arguing he was permanently totally disabled based on his vocational expert's report. The Board found the employer's vocational expert more credible, citing Canales' history of successful retraining. Therefore, the original award of 54% permanent disability was upheld.

Petition for ReconsiderationPermanent DisabilityVocational ExpertMalcolm BrodzinksyEmily TincherDiminished Future Earning CapacityOgilvieACME SteelBrodieScheduled Rating
References
6
Case No. ADJ4299001
Regular
Mar 08, 2010

JOAQUIN CORTEZ vs. FRU-CON CONSTRUCTION CORPORTION, ZURICH NORTH AMERICAN INSURANCE

The Workers' Compensation Appeals Board (WCAB) granted reconsideration to review the permanent disability rating of 54% awarded to applicant Joaquin Cortez. The defendant argued the rating was improperly calculated under *Ogilvie II*, which dictates the burden of proof lies with the party rebutting the scheduled rating. The WCAB found the vocational expert's analysis flawed due to contradictory assumptions about the applicant's pre- and post-injury earning capacity. Consequently, the WCAB reversed the 54% award, finding the applicant failed to rebut the scheduled 13% permanent disability rating and issued an award for 13% disability.

Ogilvie IIOgilvie IDFECPermanent DisabilityReconsiderationRebuttalVocational ExpertWhole Person ImpairmentRAND dataLabor Code section 4660
References
3
Case No. ADJ10192587
Regular
Dec 27, 2017

TIMOTHY WILCOX vs. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, STATE COMPENSATION INSURANCE FUND

This case involved a workers' compensation claim where the applicant, Timothy Wilcox, sought benefits for an abdominal injury sustained while lifting. The defendant contested the 50-pound lifting restriction recommended by the applicant's Qualified Medical Examiner (PQME), Dr. Fearer. The Appeals Board upheld the WCJ's decision, finding Dr. Fearer's medical opinion to be substantial evidence, even though it changed significantly. The Board adopted Dr. Fearer's reasoning that the 50-pound restriction, supported by applicant's credible testimony and affecting his ability to perform his firefighter duties, justified an increased permanent disability rating.

workers' compensationPetition for ReconsiderationQualified Medical ExaminerPQMEwhole person impairmentWPIlifting restrictioninternal herniasmall bowel resectionAlmaraz/Guzman
References
5
Case No. MISSING
Regular Panel Decision
Aug 13, 2012

Hart v. Astrue

Plaintiff Robert L. Hart appealed the denial of his Supplemental Security Income (SSI) benefits application. The District Court, reviewing a Magistrate Judge's Report and Recommendation, reversed the Commissioner of Social Security's decision. Senior District Judge Thomas J. McAvoy found that the Administrative Law Judge erred by not affording controlling weight to the plaintiff's treating physician's opinion, which restricted heavy lifting to under 15 pounds, contradicting the ALJ's finding that the plaintiff could occasionally lift 20 pounds. Furthermore, the ALJ improperly afforded minimal weight to a non-medical disability analyst's opinion and failed to consult a vocational expert despite evidence of non-exertional limitations. The case was remanded for further proceedings to correctly assess the plaintiff's residual functional capacity.

Disability BenefitsSocial Security ActALJ ErrorTreating Physician RuleResidual Functional CapacityVocational ExpertNon-Exertional LimitationsMedical OpinionRemandDistrict Court Review
References
32
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