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

Case No. 2018 NY Slip Op 00588 [158 AD3d 866]
Regular Panel Decision
Feb 01, 2018

Matter of Jelic (Ama Research Labs. Inc.--Commissioner of Labor)

Vera Jelic, a laboratory technician, was terminated from AMA Research Laboratories Inc. due to repeated tardiness and absenteeism. She filed for unemployment insurance benefits, which were initially granted by the Department of Labor and affirmed by an Administrative Law Judge and the Unemployment Insurance Appeal Board. The employer appealed, arguing that Jelic's actions constituted disqualifying misconduct. The Appellate Division, Third Department, affirmed the Board's decision, finding that while the employer had cause for termination, Jelic's conduct did not demonstrate a willful and wanton disregard of the employer's interest to rise to the level of disqualifying misconduct. The court noted that disciplinary actions occurred after a work-related injury and that Jelic was not given an opportunity to correct her behavior prior to termination.

Unemployment InsuranceDisqualifying MisconductTardinessAbsenteeismEmployment TerminationWillful and Wanton DisregardSubstantial EvidenceAppellate DivisionLabor LawEmployer Interest
References
6
Case No. MISSING
Regular Panel Decision

Serrano v. 900 5th Avenue Corp.

Defendants Brown Harris Stevens Residential Management (BHS) and 900 5th Avenue Corp. (900 5th) moved to dismiss an employment discrimination case, citing lack of subject matter jurisdiction. BHS argued it was not the plaintiff's employer, while 900 5th contended it did not meet Title VII's 15-employee minimum for an employer. The court denied BHS's motion, determining that BHS significantly affected the employment opportunities at 900 5th through its contractual authority and actions related to hiring, firing, discipline, and labor relations, thus falling within the broad definition of an "employer" under Title VII. Conversely, the court granted 900 5th's motion, ruling that its employees could not be counted with BHS's under a "joint employer" theory to satisfy the 15-employee minimum, as such an interpretation would contradict the purpose of protecting small businesses from Title VII liability.

Employment discriminationSubject matter jurisdictionRule 12(b)(1) motion to dismissTitle VIIEmployer definitionJoint employer theoryFederal Civil ProcedureStatutory minimum employeesSupervisory authority
References
17
Case No. MISSING
Regular Panel Decision

New York State Ass'n of Nurse Anesthetists v. Novello

This is a dissenting opinion challenging the majority's conclusion that an association of New York Certified Registered Nurse Anesthetists (CRNAs) lacks standing to sue the Commissioner of Health. The CRNAs challenged new 'Guidelines' which stipulate that CRNAs should provide services in office-based surgery only under supervision by a physician, dentist, or podiatrist 'qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia.' The dissent argues that the Guidelines, though presented as recommendations, are effectively regulations that will severely injure CRNAs' employment opportunities by requiring the presence of an anesthesiologist, making CRNAs redundant due to cost-prohibitive duplication of services. The dissenting judge criticizes the majority for deeming the CRNAs' evidence of economic harm as 'speculation' despite extensive factual showings from affidavits, asserting that precedent supports standing in such cases.

CRNA supervisionStandingGuidelines as regulationsEconomic injuryNurse anesthetistsAnesthesiologist supervisionOffice-based surgeryHealthcare regulationsJudicial dissentPhysician qualification
References
4
Case No. 2025 NY Slip Op 02237 [237 AD3d 1001]
Regular Panel Decision
Apr 16, 2025

Villalta v. Tonka Realty On 5th, LLC

The plaintiff, Jose Villalta, appealed an order denying his motion for summary judgment on the issue of liability under Labor Law §§ 240 (1) and 241 (6). Villalta sustained personal injuries after falling from a ladder while working on a demolition project. Conflicting testimonies between Villalta and a worksite superintendent regarding the accident's cause created factual disputes, making summary judgment inappropriate for the Labor Law § 240 (1) claim. For the Labor Law § 241 (6) cause of action, predicated on 12 NYCRR 23-1.21 (b) (4) (i) concerning securely fastened portable ladders, the plaintiff also failed to eliminate triable issues of fact. Consequently, the Supreme Court's order denying the summary judgment motion was affirmed.

Ladder AccidentDemolition ProjectWorkplace InjuryLabor Law 240(1)Labor Law 241(6)Industrial Code 12 NYCRR 23-1.21(b)(4)(i)Summary Judgment MotionTriable Issues of FactProximate CauseAppellate Review
References
12
Case No. MISSING
Regular Panel Decision

Lafroscia v. MEPT 5th Avenue, LLC

The plaintiff, a journeyman for Able Rigging Contractors, allegedly sustained injuries on March 24, 2012, while constructing a tower crane at 309 Fifth Avenue, New York. He claims he slipped on oil and fell through an opening after unhooking his lanyard, which was too short to allow him to remain harnessed while moving between platforms. The plaintiff moved for summary judgment on liability under Labor Law §§ 240 (1) and 241-a against defendants MEPT 5th Avenue, LLC and Lend Lease (US) Construction LMB Inc. The court denied the motion, finding an issue of fact regarding proximate cause for the Labor Law § 240 (1) claim and ruling that Labor Law § 241-a does not apply to tower cranes, as they are structures but not "buildings."

Summary JudgmentLabor Law 240(1)Labor Law 241-aProximate CauseConstruction AccidentTower CranePersonal InjurySafety DevicesFall from HeightSlipped on Oil
References
11
Case No. MISSING
Regular Panel Decision
Mar 14, 2007

Azad v. 270 5th Realty Corp.

Abul Kaylam Azad, hired by 270 5th Realty Corp. to repair a gutter pipe, fell from an unsecured extension ladder placed on garbage. He sued for personal injuries, alleging violations of Labor Law §§ 240(1) and 241(6). The Supreme Court, Kings County, initially granted Azad's summary judgment motion on liability and denied the defendants' cross-motion to dismiss. On appeal, the order was reversed. The appellate court found Azad was not engaged in protected activities under Labor Law § 240(1) as his work was routine maintenance, and dismissed the Labor Law § 241(6) claim as the accident did not occur during construction, excavation, or demolition work. Additionally, claims under Labor Law § 200 and common-law negligence were dismissed, as Azad's negligent placement of the ladder was deemed the sole cause of the accident, not the debris or the premises' condition.

Personal InjuryLadder AccidentSummary JudgmentLabor Law §240(1)Labor Law §241(6)Labor Law §200Routine MaintenanceCorporate VeilProximate CauseNegligence
References
20
Case No. MISSING
Regular Panel Decision

Clancey v. American Management Ass'n, Inc.

This age discrimination action involves plaintiffs alleging violations of the Age Discrimination in Employment Act (ADEA) and New York State statutes against defendant American Management Association (AMA). AMA moved for summary judgment, arguing that the plaintiffs were independent contractors, not employees, and thus not eligible for ADEA claims. The court, applying the 'economic realities' test consistent with Second Circuit precedent, found numerous disputed material facts regarding the plaintiffs' employment status. These facts included AMA's control over plaintiffs, their opportunity for profit or loss, the duration of their working relationship, and the integral nature of their work to AMA's business. Consequently, the court denied AMA's motion for summary judgment, determining that genuine issues of material fact exist concerning whether the plaintiffs were employees or independent contractors.

Age DiscriminationEmployment LawIndependent Contractor StatusSummary Judgment MotionEconomic Realities TestADEAFLSAWorker ClassificationControl TestSecond Circuit Precedent
References
7
Case No. ADJ4503926
Regular
Mar 18, 2013

IVAN GALAVIZ vs. HB PARCO CONSTRUCTION, INC., OLD REPUBLIC GENERAL INSURANCE

The Workers' Compensation Appeals Board denied the applicant's petition for reconsideration. The applicant argued that due process was violated, evidence was not adequately discussed, and findings of fact did not support the decision. The Board adopted the WCJ's report, which found the applicant failed to submit timely briefs and objections to rating instructions. The WCJ also determined that the evidence did not support the application of Almarez/Guzman, and the strict application of AMA Guidelines was appropriate.

WORKERS' COMPENSATION APPEALS BOARDPETITION FOR RECONSIDERATIONDENIEDWCJ REPORTDUE PROCESSEVIDENCEFINDINGS OF FACTOPINION AND DECISIONAMEDEPOSITION
References
1
Case No. SBR 0325667
Regular
Apr 29, 2008

JAMES PERRINE vs. THE TIRE GUYS, STATE COMPENSATION INSURANCE FUND

This case concerns an applicant who sustained an industrial injury to his right elbow and upper extremity, resulting in work restrictions despite a 0% whole person impairment rating under AMA guidelines. The Workers' Compensation Appeals Board affirmed the WCJ's decision that the applicant is a Qualified Injured Worker (QIW) entitled to vocational rehabilitation services. The Board found that the applicant's work restrictions constitute an impairment of earning capacity and a competitive handicap, thus qualifying him for benefits under former Labor Code section 4635(a).

Workers Compensation Appeals BoardFindings and AwardCompromise and Releasevocational rehabilitationqualified injured worker (QIW)VRMApermanent disabilityAMA GuidelinesLabor Code 139.5Labor Code 4635
References
8
Case No. ADJ4141215 (MON 0288595) ADJ4160601 (MON 0288596) ADJ2249717 (MON 0300098)
Regular
Dec 27, 2011

DOREEN LABOY vs. STATE OF CALIFORNIA, DEPARTMENT OF MENTAL HEALTH, Legally Uninsured; STATE COMPENSATION INSURANCE FUND / STATE CONTRACT SERVICES, Adjusting Agency

The Workers' Compensation Appeals Board (WCAB) denied the defendant's Petition for Reconsideration, finding their argument regarding AMA Guidelines irrelevant due to a prior stipulation to the 1997 Rating Schedule. The WCAB granted removal to issue notices of intention to impose sanctions and award attorney's fees/costs against the defendant and their counsel. This action is based on the defendant's frivolous and bad-faith tactics in raising an issue for the first time on reconsideration that was not previously litigated or argued. The defendant's petition is deemed without merit and solely intended to cause unnecessary delay.

LABOYDOREENSTATE OF CALIFORNIADEPARTMENT OF MENTAL HEALTHSTATE COMPENSATION INSURANCE FUNDJOINT FINDINGS AND AWARDPETITION FOR RECONSIDERATIONREMOVALNOTICES OF INTENTIONORDER TO PAY EXPENSES
References
6
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