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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. 2017 NY Slip Op 00956
Regular Panel Decision
Feb 08, 2017

Cacanoski v. 35 Cedar Place Associates, LLC

The plaintiff, Krste Cacanoski, was injured after falling through a skylight during asbestos removal work for 35 Cedar Place Associates, LLC. He commenced an action against 35 Cedar Place Associates, LLC, alleging a violation of Labor Law § 240 (1) for failing to provide adequate safety devices. 35 Cedar Place Associates, LLC, subsequently initiated a third-party action against Cacanoski's employer, Superior Abatement, Inc., seeking contractual indemnification under a subcontract executed after the accident. The Supreme Court denied both the plaintiff's motion for summary judgment on the Labor Law claim and Superior Abatement, Inc.'s motion to dismiss the third-party complaint. On appeal, the Appellate Division, Second Department, reversed the Supreme Court's order with respect to the plaintiff's motion, granting summary judgment on the Labor Law § 240 (1) cause of action, finding that the absence of necessary protection was a proximate cause of the plaintiff's injuries. The court affirmed the denial of Superior Abatement, Inc.'s motion to dismiss the third-party complaint, concluding that a triable issue of fact existed regarding whether the parties intended the indemnification provision to apply retroactively.

Labor Law § 240(1)Personal InjurySummary JudgmentAsbestos RemovalFall from heightSky-lightContractual IndemnificationRetroactive AgreementWorkers' Compensation Law § 11Appellate Division
References
19
Case No. 2018 NY Slip Op 05301 [163 AD3d 805]
Regular Panel Decision
Jul 18, 2018

Matter of 35 Jackson House Apts. Corp. v. Yaworski

The landlord, 35 Jackson House Apartments Corporation, initiated a summary holdover proceeding against shareholder Monika Yaworski due to unauthorized apartment renovations. A settlement stipulated that Yaworski provide details of licensed workers for inspection and compliance. Despite multiple extensions, Yaworski failed to meet these material terms. Consequently, the Civil Court granted the landlord's motion for a warrant of eviction, a decision subsequently affirmed by the Appellate Term. The Appellate Division, Second Department, further affirmed this outcome, concluding that Yaworski's repeated non-compliance constituted a substantial breach, not a de minimis default.

holdover proceedingstipulation of settlementwarrant of evictionunauthorized renovationslandlord-tenant lawcontractual breachappellate reviewdefault judgmentproperty lawjudicial discretion
References
8
Case No. ADJ460672 (SFO 0499592), ADJ224818 (SFO 0499593)
Regular
Jul 11, 2012

HAMID KHAZAELI vs. SPEDIA.COM, INC., and SYSMASTER CORP., GREAT AMERICAN INSURANCE CO

Applicant Hamid Khazaeli has been declared a vexatious litigant under CCR Title 8, Section 10782, requiring pre-filing approval for any filings with the Workers' Compensation Appeals Board (WCAB) unless represented by an attorney. His "Petition for Reconsideration, Removal, Disqualification, and to Compel Testimony" filed on June 29, 2012, was reviewed. The WCAB did not accept this petition for filing, deeming it largely duplicative of prior dismissed and rejected filings. This decision reinforces the applicant's status as a vexatious litigant subject to strict pre-filing review protocols.

Vexatious LitigantPre-filing OrderCCR Title 8 Section 10782Petition for ReconsiderationRemovalDisqualificationCompel TestimonyJudicial OfficersQuasi-Judicial OfficersAppeals Board
References
2
Case No. ADJ6645567
Regular
Mar 26, 2012

DARLENE BERKE vs. BLOOMINGDALES, MACYS CORPORATE SERVICES

This case concerns a dispute over the disqualification of a Qualified Medical Evaluator (QME), Dr. Monosson, due to alleged ex parte communication initiated by the doctor regarding deposition fees. The Appeals Board dismissed the applicant's Petition for Reconsideration because the underlying finding was not a final order. However, the Board granted removal and rescinded the disqualification, ruling that Dr. Monosson was not disqualified. The Board emphasized that Labor Code section 4062.3(f) and CCR, Title 8, Section 35(k) protect the aggrieved party's election rights, and here, the applicant, the aggrieved party, did not seek a new QME.

Panel Qualified Medical EvaluatorDisqualificationEx Parte CommunicationPetition for ReconsiderationPetition for RemovalLabor Code Section 4062.3Aggrieved PartyMedical ReportsDeposition FeesPrepayment
References
4
Case No. MISSING
Regular Panel Decision

Nardolillo v. Sovinsky

Plaintiffs, members of the Tile, Marble and Terrazzo Helpers Subordinate Union No. 8, sought to recover funds contributed by their employer to a trust fund. They argued that the discontinuation of employer contributions rendered them ineligible for benefits, making the trust's purpose impossible and leading to unjust enrichment by the fund. Defendants countered that such payments would violate the trust agreement and IRS provisions, maintaining that plaintiffs remained eligible. The court determined that the fund was a common trust, not individual escrowed accounts, and upheld the trustees' interpretation that ensured plaintiffs' continued eligibility, preventing a forfeiture of rights. Consequently, the plaintiffs' motion was denied, and the defendants' motion to dismiss was granted.

Union Trust FundEmployee BenefitsEmployer ContributionsTrust AgreementBenefit EligibilityFund AdministrationBreach of TrustFiduciary DutyDismissal MotionLabor-Management Relations Act
References
6
Case No. ADJ6699348
Regular
Mar 17, 2016

KANON MONKIEWICZ vs. RM STORE FIXTURES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) issued a Notice of Intention to find that Labor Code section 4903.8(a) does not preclude awards to lien claimants Rx Funding Solutions, LLC and PharmaFinance, LLC. This is because the 2014 amendments to section 4903.8(a)(2) specify that it does not apply to assignments completed prior to January 1, 2013. Both of the lien claimants' assignments were made before this date, thus exempting them from the preclusion. The WCAB is amending its previous order and returning the case to the trial level for further proceedings on the merits of the liens.

Labor Code 4903.8Lien claimantsAssignment of receivablesCessation of businessPharmacy lienMedical lienSB 863AB 2732Prospective vs. retrospective applicationWCAB rules
References
10
Case No. MISSING
Regular Panel Decision

Curran v. International Union, Oil, Chemical & Atomic Workers

Plaintiff, an employee of Carborundum Company, suffered a partial hand amputation in a "rubber roll" machine accident on March 8, 1979. He sued his unions, International Union, Oil, Chemical & Atomic Workers, AFL-CIO, and Abrasive Workers, Local 8-12058, Oil, Chemical & Atomic Workers International Union, alleging state law negligence for failing to safeguard him from dangers and a federal claim for breaching their duty of fair representation. The unions moved for summary judgment, arguing federal law preempts the negligence claim and they did not breach their duty of fair representation. The court granted the unions' motion regarding the negligence claim, ruling that a union's duty to its members, arising from a collective bargaining agreement, is governed exclusively by federal law and does not include a duty of care. However, the court denied the motion regarding the breach of fair representation claim, finding sufficient facts and allegations to infer that the unions may have discharged their duty in an arbitrary, perfunctory manner or in bad faith, thus leaving triable issues of fact.

Union LiabilityDuty of Fair RepresentationNegligence ClaimFederal PreemptionCollective Bargaining AgreementSummary Judgment MotionLabor LawWorkplace AccidentSafety and Health CommitteeArbitrary Union Action
References
8
Case No. MISSING
Regular Panel Decision

LoVerde v. 8 Prince Street Associates, LLC

Nicholas J. LoVerde, Jr., an employee of Timothy Kelly, suffered injuries from a scaffold fall while working on a building owned by defendants John Billone, Sr. and 8 Prince Street Associates, LLC. Plaintiffs initiated a personal injury action citing violations of Labor Law §§ 200, 240 (1), and 241 (6). The Supreme Court granted plaintiffs partial summary judgment on liability under Labor Law § 240 (1) and denied the defendants' motion to dismiss. Defendants appealed, contending plaintiff was not covered by Labor Law provisions due to how he was hired, and that his own actions caused the accident. The appellate court affirmed the lower court's decision, ruling that the defendants had contracted for the work and failed to prove plaintiff's conduct was the sole cause of the incident.

Scaffold AccidentPersonal Injury LitigationLabor Law § 240(1)Building DemolitionProperty Owner LiabilityContractor LiabilitySummary Judgment MotionAppellate AffirmationComparative NegligenceWorker Safety Regulations
References
7
Case No. MISSING
Regular Panel Decision

North 7-8 Investors, LLC v. Newgarden

The petitioner, North 7-8 Investors, LLC, sought a license under RPAPL 881 to enter the adjoining property of respondent Mark A. Newgarden for construction purposes, specifically for developing two seven-story buildings. Initially, the petitioner requested extensive access for shoring, roof protection, and scaffolding, leading to lengthy negotiations and respondent's objections regarding safety, architectural plans, and reimbursement for professional fees. As a result, the petitioner modified its plans significantly, reducing the need for direct access and proposing a cantilevered safety balcony into the respondent's air space. The court granted the petition for a one-year license with specific terms, including conditions for the safety balcony, insurance, indemnification, a monthly license fee of $3,500, and reimbursement for respondent's reasonable architectural and legal fees incurred in negotiation and enforcement, while denying the respondent's cross-motion for dismissal and sanctions.

Property LawReal Property Actions and Proceedings LawRPAPL 881License to EnterAdjoining PropertyConstruction LawAccess AgreementAttorney's FeesArchitectural FeesLicense Fees
References
11
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