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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

Slaughter v. American Building Maintenance Co.

Ellis L. Slaughter, a former employee of American Building Maintenance Co. of New York (ABM), moved for partial summary judgment on his Family and Medical Leave Act (FMLA) claim and to dismiss ABM's affirmative defense of collateral estoppel. Slaughter was terminated by ABM due to excessive absences under a 'no fault' policy, stemming from recurring back pain, a condition known to ABM's predecessor. The court found that Slaughter's notice to ABM regarding his FMLA-qualifying leave was insufficient for summary judgment in his favor, as merely calling in sick did not adequately inform ABM of his FMLA-protected condition, and doctors' notes were provided with delay. However, the court granted Slaughter's motion to dismiss ABM's collateral estoppel defense, ruling that a prior arbitration decision, which upheld his termination for excessive absenteeism, did not preclude his federal statutory FMLA claim because the issues resolved were distinct and the arbitrator did not consider FMLA specifics. The motion for summary judgment was thus granted in part and denied in part.

FMLASummary Judgment MotionCollateral EstoppelAbsenteeism PolicyTermination of EmploymentBack InjuryMedical Leave NoticeLabor LawEmployee RightsPreclusive Effect of Arbitration
References
27
Case No. MISSING
Regular Panel Decision

Claim of Homan v. Gotham Building Maintenance Corp.

The claimant, a fireman for Gotham Building Maintenance Corporation, suffered an inguinal hernia in 1977 but did not file a workers' compensation claim until 1982 when surgery became necessary. The State Insurance Fund, the carrier, paid for the surgery in September 1983. At a hearing, the employer and carrier argued the claim was time-barred under Workers' Compensation Law § 28, as it was filed more than two years after the accident. However, the Workers' Compensation Board ruled that the carrier's payment for the surgery constituted an advance payment of compensation, thereby waiving the two-year limitation period. The appellate court affirmed the Board's decision, citing established precedent that such advance payments, even if made after the statutory period, waive the limitation, especially when timeliness was not disputed before payment.

Workers' CompensationLimitation PeriodAdvance PaymentWaiverMedical ExpensesHernia InjuryTimeliness of ClaimBoard DecisionAppellate ReviewState Insurance Fund
References
5
Case No. MISSING
Regular Panel Decision

Jenkins v. Arcade Building Maintenance

Jenkins, an African American woman, sued her former employer and several individuals and entities (Initial Contract Serviced, Petar Dedovic, Argirre Lolovic, Arcade Building Maintenance, and Local 32B-32J Service Employees International Union) for alleged discrimination based on race, color, national origin, and gender, and retaliation under 42 U.S.C. § 1981, and conspiracy under 42 U.S.C. § 1985. She claimed harassment and wrongful termination after filing a discrimination complaint in 1993. Defendants moved to dismiss the complaint. The court granted the motion, dismissing the § 1981 claims for lack of specific allegations of racial animus and finding gender discrimination not actionable under § 1981. It also dismissed the § 1985 conspiracy claim, ruling that a § 1981 employment discrimination claim cannot serve as its basis. The court further determined that events prior to May 1, 1995, were time-barred and the continuing violation doctrine did not apply due to conclusory allegations. Jenkins was granted leave to replead her First and Second Claims for Relief.

DiscriminationRetaliationConspiracy42 U.S.C. § 198142 U.S.C. § 1985Employment LawMotion to DismissStatute of LimitationsContinuing Violation DoctrineRacial Discrimination
References
59
Case No. ADJ6751788
Regular
Aug 16, 2010

MOISES ROBLES GARCIA vs. ABLE BUILDING MAINTENANCE, ZURICH NORTH AMERICA

The Workers' Compensation Appeals Board granted reconsideration of a finding of industrial injury for applicant Moises Robles Garcia. Defendant Able Building Maintenance argued the applicant failed to prove injury arising out of and occurring in the course of employment (AOE/COE) and raised affirmative defenses of intoxication and material deviation. The Board rescinded the original decision and returned the case to the trial level for further proceedings, specifically to determine AOE/COE and consider the applicant's credibility and deposition transcripts. The WCJ must now make a determination on AOE/COE and potentially other defenses.

AOE/COEintoxication defensematerial deviationexcluded evidencedeposition transcriptswitness demeanorcredibilitypreponderance of the evidencecausal connectionrational incident of work
References
6
Case No. MISSING
Regular Panel Decision

Pagan v. International Ladies Garment Workers Union

Plaintiff Matilda Pagan brought a personal injury action after slipping and falling on a hallway floor at premises leased by Local 23-25 International Ladies Garment Workers Union from 1710 Broadway Inc. Supreme Building Maintenance Corp. was the maintenance contractor responsible for the building. Plaintiff alleged that Supreme Building negligently swept the floor with an unknown chemical, creating a slippery condition on newly installed tiles. The Supreme Court initially denied Supreme Building's motion for summary judgment. However, this appellate court reversed the lower court's order, finding the plaintiff's allegations conclusory, self-serving, and highly speculative, without sufficient proof of negligence. Consequently, summary judgment was granted in favor of Supreme Building Maintenance Corp., and the complaint against it was dismissed. Additionally, an appeal from a separate judgment, which granted summary judgment to Local 23-25 and 1710 Broadway Inc., was dismissed because Supreme Building was not 'aggrieved' by that judgment.

Personal InjurySlip and FallSummary JudgmentMaintenance NegligencePremises LiabilityAppellate ProcedureDismissal of ComplaintLack of EvidenceSpeculative AllegationsThird-Party Action
References
5
Case No. MISSING
Regular Panel Decision

Evans v. Citicorp

In a personal injury action, a building maintenance worker sued the building's owner and sole tenant after slipping on snow and ice on the roof. The Supreme Court initially granted summary judgment to the tenant and denied it to the owner, and denied the plaintiff's cross-motion for further disclosure. On appeal, the order was unanimously modified. The action was dismissed against the tenant, finding the plaintiff was its special employee. The owner's motion for summary judgment was also granted, as the out-of-possession landlord was not responsible for general maintenance or snow removal, which was the tenant's sole responsibility, and the cause of the fall was not a structural defect.

Personal InjuryPremises LiabilitySummary JudgmentSpecial EmployeeOut-of-Possession LandlordSnow and IceBuilding MaintenanceAppellate ReviewEmployer ResponsibilityTenant Responsibility
References
2
Case No. MISSING
Regular Panel Decision

Tucker v. American Building Maintenance

Pro se plaintiff Augustine Tucker brought an action against his former and current employers, American Building Maintenance Company of New York, Inc. (ABM) and Collins Building Services (CBS), to vacate an arbitration award. The arbitration, conducted under a collective bargaining agreement, denied Tucker's grievance regarding a change in his work shift and loss of overtime pay. Tucker alleged the award was arbitrary, fraudulent, and a product of collusion, and that his union attorney provided negligent representation. Defendants moved to dismiss, arguing Tucker lacked standing, failed to state a claim, and the action was untimely. The court granted the motion, finding Tucker did not provide sufficient facts to support claims of arbitrary, discriminatory, or bad faith conduct by the union, nor did he meet the rigorous standards under the Federal Arbitration Act to vacate an arbitration award.

Arbitration AwardCollective Bargaining AgreementLabor Management Relations ActDuty of Fair RepresentationMotion to DismissFederal Arbitration ActPro Se LitigationWorkplace DisputeOvertime PayWork Shift Change
References
22
Case No. 2007 NY Slip Op 32865(U)
Regular Panel Decision

Pomahac v. TrizecHahn 1065 Avenue of the Americas, LLC

The plaintiff slipped and fell in a building lobby due to a wet floor and subsequently sued the building manager (TrizecHahn) and maintenance company (ABM) for negligence, alleging a failure to place sufficient mats. Defendants moved for summary judgment, arguing they took reasonable precautions by deploying two mats, a caution sign, and having an employee mop. The Supreme Court initially denied the defendants' motions on reargument. However, the appellate court reversed, granting summary judgment to the defendants, stating their actions constituted reasonable precautions as a matter of law. The court also held that failure to adhere to an internal policy for mat placement does not automatically equate to negligence if that policy's standard exceeds reasonable care. A dissenting opinion argued that a triable issue of fact existed concerning the reasonableness of precautions given recurring hazardous conditions and insufficient mat coverage.

Summary JudgmentNegligencePremises LiabilityWet FloorBuilding MaintenanceReasonable Care StandardInternal PolicySlip and FallTerrazzo FloorAppellate Division
References
24
Case No. 2021 NY Slip Op 01870 [192 AD3d 607]
Regular Panel Decision
Mar 25, 2021

Shala v. Park Regis Apt. Corp.

Plaintiff Sahit Shala was injured while renovating an apartment in a cooperative building owned by Park Regis Apartment Corporation. Park Regis, acting as third-party plaintiff, moved for summary judgment on its claims for contractual indemnification and breach of contract for failure to procure insurance against ASA Building Maintenance, Inc., plaintiff's employer and the third-party defendant. The Supreme Court initially granted Park Regis's motion and denied ASA's. The Appellate Division modified the order, acknowledging that ASA was bound by an alteration agreement requiring indemnification and insurance procurement. However, it found issues of fact precluding summary judgment for both parties on the contractual indemnification and breach of contract claims. Additionally, the court granted ASA's motion to dismiss Park Regis's common-law indemnification and contribution claims, as Park Regis failed to address whether the plaintiff sustained a grave injury under Workers' Compensation Law § 11.

Contractual IndemnificationBreach of ContractFailure to Procure InsuranceSummary JudgmentCommon-Law IndemnificationContribution ClaimsWorkers' Compensation Law § 11Grave InjuryAlteration AgreementAppellate Review
References
4
Case No. ADJ14027888
Regular
Feb 08, 2023

BESSY FUERTE vs. CROWN BUILDING MAINTENANCE COMPANY dba ABLE BUILDING MAINTENANCE, GALLAGHER BASSETT SERVICES, INC.

The Workers' Compensation Appeals Board denied the Applicant's Petition for Removal, which sought to overturn the WCJ's order setting the case for trial. The Applicant argued that setting the trial violated Labor Code section 4061(i) and that Dr. Coppelson's reports were not substantial evidence. The Board found that the issue of whether the Applicant waived her right to a QME due to lack of diligence was a triable issue. Therefore, denial of removal was appropriate as reconsideration would be an adequate remedy if the Applicant ultimately prevailed.

Removal PetitionDeclaration of Readiness to ProceedLabor Code 4061(i)Substantial EvidenceFurther Record DevelopmentMaximum Medical ImprovementPermanent and Stationary StatusQualified Medical EvaluatorMandatory Settlement ConferenceWaiver of Rights
References
6
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