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

Case No. 03 Civ. 0332(AKH)
Regular Panel Decision
Oct 29, 2004

In Re September 11th Liability Insurance Coverage Cases

This opinion and order addresses two Rule 12(c) motions regarding insurance coverage for the World Trade Center properties following the September 11, 2001, attacks. The Port Authority of New York and New Jersey sought a declaration that it is an "Additional Insured" under Zurich American Insurance Company's policies, while World Trade Center Properties LLC (WTCP) sought a declaration that Zurich is obligated to cover defense costs. The court, presided over by District Judge Hellerstein, denied both motions. It found ambiguity in the binder regarding the Port Authority's "Additional Insured" status, stating that the issue was premature without further discovery. Furthermore, the court held that New York Insurance Regulation 107 does not require rewriting Zurich's binder and policies to include defense costs, considering the unique circumstances, the sophistication of the insured, and the fact that Zurich explicitly excluded defense costs, which Silverstein (WTCP's affiliate) accepted after failing to secure conventional coverage. The court also affirmed supplemental jurisdiction over the insurance claims due to their close relation to the underlying September 11th liability cases.

Insurance CoverageSeptember 11 AttacksWorld Trade CenterRule 12(c) MotionDeclaratory ReliefAdditional Insured StatusDefense CostsInsurance BinderNew York Insurance LawRegulation 107
References
48
Case No. ADJ6791157
Regular
May 12, 2011

NAIRA SHIRINYAN vs. MACY'S WEST, Permissibly Self-Insured

This case involves an applicant who sustained a work injury and disputes the defendant's compliance with medical provider network (MPN) requirements. The Appeals Board rescinded the WCJ's order that the defendant properly managed the MPN and did not owe for self-procured treatment. The Board returned the case to the trial level to address whether the defendant's MPN was properly established and approved by the DWC, and to address an issue regarding AD Rule 9767.12, which the WCJ had not decided. The applicant's argument about posting notices was waived as it was not raised at the mandatory settlement conference or trial.

Medical Provider NetworkMPNReconsiderationFindings and OrderMerchandising AssociateLabor Code SectionsDivision of Workers' CompensationDWCAdministrative DirectorAD Rule
References
4
Case No. 96-CV-3879, 96-CV-6310
Regular Panel Decision

Schuloff v. Queens College Foundation, Inc.

Plaintiff Anita Schuloff filed two separate lawsuits against Queens College Foundation, Inc. and Brooklyn College Foundation, Inc., which were consolidated due to identical legal issues. Schuloff alleged violations of 26 U.S.C. § 6104 for the defendants' failure to promptly provide federal tax returns for public inspection, along with claims under 42 U.S.C. § 1983 and New York Freedom of Information Law. The defendants moved to dismiss the complaints under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court granted the motions to dismiss under Rule 12(b)(6), ruling that 26 U.S.C. § 6104 does not create a private cause of action, thus precluding the related § 1983 claims. Consequently, the Court declined supplemental jurisdiction over the state law claims, dismissing both complaints in their entirety.

Private Cause of ActionTax-Exempt Organizations26 U.S.C. § 610442 U.S.C. § 1983Rule 12(b)(6)Motion to DismissFederal JurisdictionStatutory InterpretationLegislative HistorySupplemental Jurisdiction
References
28
Case No. MISSING
Regular Panel Decision
Mar 26, 1998

In Re Bagel Bros. Bakery & Deli, Inc.

This order addresses whether Federal Rule of Bankruptcy Procedure 1014(b) imposes an automatic stay on proceedings in a subsequently-filed bankruptcy case. The case involves three Chapter 11 cases of Bagel Bros. Maple, Inc. and Bagel Bros. Deli & Bakery, Inc. in the Western District of New York, which are related to earlier Chapter 11 cases of MBC in the District of New Jersey. MBC filed a motion in New Jersey seeking to transfer venue and requested that the New York court automatically stay its proceedings based on Rule 1014(b). Bankruptcy Judge Michael J. Kaplan ruled that Rule 1014(b) does not constitute an automatic or self-executing stay upon the mere filing of a motion. Instead, a judicial determination and order from the first-filed court (District of New Jersey) are required to impose such a stay, ensuring that substantive rights are not abridged and allowing for judicial discretion in emergency matters. Therefore, the proceedings in the Western District of New York are not automatically stayed.

Bankruptcy ProcedureAutomatic StayFederal Rule of Bankruptcy Procedure 1014(b)Venue TransferChapter 11 ReorganizationInter-district BankruptcyJudicial InterventionSubstantive RightsFranchise AgreementsCash Collateral Disputes
References
12
Case No. MISSING
Regular Panel Decision

International Brotherhood of Teamster v. Carey

The International Brotherhood of Teamsters (IBT) brought an action under RICO, alleging that defendants defrauded the IBT by misusing union funds to promote Ron Carey’s 1996 re-election campaign as General President. The IBT also asserted malpractice claims against Cohen, Weiss and Simon, and Nathaniel Charny. Defendants moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and for Rule 11 sanctions. The court denied the motions to dismiss for lack of subject matter jurisdiction (12(b)(1)) but granted the motions to dismiss for failure to state a claim (12(b)(6)), concluding that the plaintiff failed to sufficiently allege a "pattern of racketeering activity" for both closed-ended and open-ended continuity. Consequently, the RICO and RICO conspiracy claims were dismissed. The court also declined to exercise supplemental jurisdiction over the state law malpractice claims and denied the motions for sanctions.

RacketeeringRICOMail FraudWire FraudEmbezzlementCampaign FinanceElection FraudUnion FundsFiduciary DutyConspiracy
References
37
Case No. ADJ8608456 MF\nADJ8608504\nADJ8523009\nADJ8551858\nADJ8609068
Regular
Oct 07, 2015

HORACIO CABRERA, Deceased MARIBEL BARAJAS, Widow, Guardian Ad\nLitem for LITZY CABRERA, LESLY\nCABRERA, MARIA CABRERA AND\nKASSANDRA CABRERA; BRIANNA\nCABRERA, for herself and Guardian Ad Litem for STEFANI ARIAS, ANTONIO SOLARES, MODESTO DOMINGUEZ, JOHNATHAN ALONSO vs. MV CONTRACTING, STAR INSURANCE COMPANY

In this workers' compensation case, the employer sought reconsideration of a ruling finding a fatal motor vehicle accident and related injuries industrial. The employer argued the administrative law judge erred in admitting evidence and presuming compensability due to a failure to issue timely denial notices. The employer also contended the "going and coming rule" barred the claims as the accident occurred during a standard commute. The Board denied reconsideration, affirming the judge's findings that the injuries were industrial and not barred by the going and coming rule, largely adopting the judge's reasoning.

WCABPetition for ReconsiderationDenying PetitionRulings and Order Admitting EvidenceFindings of FactMotor Vehicle AccidentIndustrial InjuriesFatal Industrial InjuryDependentsNotice of Denial
References
0
Case No. ADJ10348591 ADJ10349019
Regular
Jan 07, 2019

MIGUEL VELAZQUEZ, SERVANDO VELAZQUEZ vs. ARTEMIO ARCE, SOLOMON MARTINEZ

The Workers' Compensation Appeals Board denied a defendant's petition for reconsideration, upholding a prior finding that liens for interpreting services were not barred by AD rule 9792.5.5. This rule, requiring a second review request for fee schedule disputes, did not apply because the interpreter services were not subject to an applicable fee schedule at the time of service. Therefore, the lien claimant's failure to request a second review did not preclude the WCAB from adjudicating the lien dispute. The Board reasoned that AD rule 9792.5.5 and associated statutes only mandate the second review process for disputes concerning amounts under an "applicable fee schedule."

Workers' Compensation Appeals BoardAD Rule 9792.5.5Official Medical Fee ScheduleIndependent Bill ReviewExplanation of ReviewLabor Code section 4603.2Senate Bill 863Threshold IssueFee Schedule DisputeInterpreter Services
References
0
Case No. CA 12-01229
Regular Panel Decision
Mar 15, 2013

STEIGER, GARY v. LPCIMINELLI, INC.

Plaintiff Gary Steiger commenced a Labor Law and common-law negligence action seeking damages for injuries sustained after tripping and falling while exiting a portable toilet at a construction site. The plaintiff's employer contracted with defendant Orchard Park CCRC, the landowner, for fiber optic installation. Defendant LPCiminelli, Inc. acted as the general contractor and was responsible for placing the portable toilets. The Supreme Court initially denied the defendants' motion for summary judgment. The Appellate Division modified the order, granting summary judgment to dismiss certain Labor Law § 200 and common-law negligence claims against LPCiminelli, Inc. based on a lack of actual notice, and fully dismissing these claims against Orchard Park CCRC. Furthermore, the court dismissed the Labor Law § 241 (6) cause of action, ruling that the accident site was not a 'passageway' under 12 NYCRR 23-1.7 (e) (1). One justice dissented regarding the dismissal of the Labor Law § 241 (6) claim.

Premises LiabilitySummary JudgmentAppellate ReviewConstruction Site AccidentDangerous ConditionActual NoticeConstructive NoticeSupervisory ControlPortable Toilet PlacementTrip and Fall
References
40
Case No. 12-01051
Regular Panel Decision

Schuman v. Connaught Group, Ltd. (In re Connaught Group, Ltd.)

Plaintiff Martina Schuman, on behalf of herself and approximately 100 former employees, filed an adversary proceeding seeking class certification for claims under the Federal and New York State WARN Acts against The Connaught Group Creditors’ Liquidating Trust. The claims alleged that employees were terminated without the legally required 60 days' notice on or about January 30, 2012, following the debtor The Connaught Group, Ltd.'s bankruptcy filing. The Trust opposed, arguing inadequate representation due to differing priorities for pre-petition versus post-petition claims and that a class action was inferior to the bankruptcy claims process. The court, presided over by Bankruptcy Judge Stuart M. Bernstein of the Southern District of New York, found that the plaintiff met the criteria for numerosity, commonality, and typicality under Rule 23(a). It ruled that no conflict of interest existed between pre-petition and post-petition claimants as the confirmed bankruptcy plan provided equal treatment for both administrative and priority claims, and the class action was deemed superior given the early filing and the purpose of Rule 23 to avoid multiple individual claims. The motion for class certification was therefore granted.

Class ActionWARN ActBankruptcy LawCreditorsMass LayoffEmployee RightsClass CertificationStatute of LimitationsBar DateAdversary Proceeding
References
26
Case No. MISSING
Regular Panel Decision
Jun 12, 1996

In Re Ralph Lauren Womenswear, Inc.

Stuart L. Kreisler, the debtor's former chief executive officer, moved to have his claim against Ralph Lauren Womenswear, Inc. (RLW) estimated for voting purposes in RLW's plan of reorganization. Kreisler argued most of his claim, arising from postpetition termination, was an administrative expense, with a smaller unsecured claim. The debtor, RLW, denied any claim. Chief Judge Tina L. Brozman conducted an evidentiary hearing to estimate the claim due to time constraints before the confirmation hearing. The court determined that Kreisler's severance claim would likely be allowed as a postpetition quantum meruit administrative expense, estimating his prepetition unsecured claim related to unpaid bonus at $279,000, and the severance portion of his prepetition claim at zero. The ruling also addressed disputes concerning EBIT calculation for bonus determination and the allocation of the bonus between pre- and post-petition periods.

BankruptcyClaim EstimationSeverance PayAdministrative ExpenseQuantum MeruitEmployment AgreementDebtor ReorganizationPostpetition ClaimPrepetition ClaimBonus Calculation
References
13
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