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

Case No. 2019 NY Slip Op 07587 [176 AD3d 1069]
Regular Panel Decision
Oct 23, 2019

Matter of Rosenberg v. Schwartz

The case involves Eric Rosenberg and Allan Schwartz, who were 50% owners of Blind Builders USA, Inc. They agreed to arbitrate their claims to the company's assets before a rabbinical arbitration tribunal, which issued an award including the distribution of accounts receivable. Rosenberg sought to confirm the award, while Schwartz moved to vacate it, arguing it was indefinite regarding the accounts receivable distribution. The Supreme Court confirmed the award. On appeal, the Appellate Division dismissed appeals from prior orders and an earlier judgment. It modified the December 23, 2016, judgment, finding the arbitration award indefinite as it did not clearly define how the accounts receivable incurred prior to the award date were to be distributed. Consequently, that portion of the award was vacated, and the matter was remitted to the rabbinical arbitration tribunal for further proceedings on that specific issue.

Arbitration AwardCPLR Article 75Vacate Arbitration AwardConfirm Arbitration AwardAccounts ReceivableBusiness DisputePartnership DisputeRabbinical Arbitration TribunalIndefinite AwardNonfinal Award
References
10
Case No. MISSING
Regular Panel Decision

Massachusetts Mutual Life Insurance v. Avon Associates, Inc.

This case addresses a motion by defendants mortgagors to vacate an ex parte order appointing a receiver during a mortgage foreclosure action. Defendants asserted that the lack of notice for the receiver's appointment violated CPLR 6401 and their Federal constitutional due process rights, citing Fuentes v Shevin. The court found that New York's Real Property Actions and Proceedings Law § 1325 (subd 1) permits ex parte receiver appointments when the mortgage contract explicitly waives notice. Furthermore, the court distinguished the present case from Fuentes, concluding that the sophisticated business operators involved had knowingly and voluntarily waived their right to notice, akin to the circumstances in Overmyer Co. v Frick Co. Based on these findings, the court affirmed the validity of the ex parte order and denied the defendants' motion to vacate the appointment of the receiver.

Mortgage ForeclosureReceiver AppointmentEx Parte OrderDue ProcessWaiver of NoticeContractual WaiverCPLRReal Property Actions and Proceedings LawConstitutional LawBusiness Disputes
References
9
Case No. MISSING
Regular Panel Decision
Jul 22, 1999

In re the Claim of Petrocelli

The claimant was dismissed from her bookkeeper position after threatening a co-worker, a behavior she had been reprimanded for earlier. The Unemployment Insurance Appeal Board ruled that her employment was terminated due to misconduct, disqualifying her from receiving unemployment insurance benefits. The appellate court affirmed this decision, finding substantial evidence supported the Board's conclusion. It noted that continuous threatening or harassing behavior despite employer warnings constitutes disqualifying misconduct. The court also clarified that the claimant's differing account of events merely created a credibility issue for the Board to resolve, which it was entitled to do.

Unemployment benefitsMisconductWorkplace threatsHarassmentEmployee dischargeCredibility issueAdministrative appealAppellate DivisionUnemployment Insurance LawEmployer warnings
References
5
Case No. MISSING
Regular Panel Decision

In re South Shore Tobacco & Candy Co.

The coassignees moved for an order settling their final account, fixing their commissions, and granting allowances to their attorneys and accountants. Arthur Kerner, Esq., representing himself and unsecured creditors, opposed the requested amounts, deeming them excessive and questioning the administration of the estate. The court had previously denied the motion and requested additional documentation and explanations. After reviewing new submissions and the case file, the court largely sided with the objector, significantly reducing the requested commissions and fees for the coassignees, their attorneys, and accountants based on established guidelines for economy and efficiency in estate administration.

Assignment for Benefit of CreditorsCommissionsAttorneys' FeesAccountants' FeesEstate AdministrationDebtor and Creditor LawJudicial ReviewCompensation GuidelinesFiduciary DutiesObjections to Fees
References
16
Case No. MISSING
Regular Panel Decision

In re Kornrich

Philip J. Shore, beneficiary of an inter vivos trust, through his guardian ad litem, sought the removal of trustee Georgina Vassiliou, Esq., for her failure to account as directed by a prior court order. Vassiliou, who drafted the trust instrument naming herself as grantor and trustee, argued that the trust terms exempted her from accounting during the beneficiary's lifetime. The court found that such a provision, attempting to render a fiduciary unaccountable, is void as against public policy, as expressed in EPTL 11-1.7, and applies equally to inter vivos trusts where beneficiaries cannot protect their interests. The court also denied Vassiliou's motion to dismiss the guardian's petition and her requests for reargument or renewal, finding them procedurally defective and lacking merit. Ultimately, the court granted the application for Vassiliou's removal as trustee and for permission to take and state her account, while denying all of Vassiliou's motions.

Inter Vivos TrustTrustee RemovalFiduciary DutyAccountingPublic PolicyEPTL 11-1.7Guardian ad LitemBeneficiary RightsProfessional EthicsSurrogate's Court
References
18
Case No. MISSING
Regular Panel Decision
Apr 05, 1994

In re the Claim of Skinder

After being laid off, the claimant received unemployment insurance benefits, which were subsequently reduced by the Unemployment Insurance Appeal Board. This reduction was due to the claimant's receipt of retirement benefits, which he had rolled into an individual retirement account, leading to a recoverable overpayment of $740. The claimant challenged this decision, contending that other similarly situated employees received full benefits. However, the Board's decision was affirmed on appeal, citing Labor Law § 600 (7), which mandates a reduction in unemployment benefits when retirement benefits are received. The court found the claimant's argument without merit due to the clear statutory provision and lack of substantiation for his comparative claim.

Unemployment InsuranceRetirement IncomeBenefit EligibilityStatutory InterpretationAdministrative AppealOverpayment LiabilityLabor Law § 600(7)Appellate ReviewClaimant's AppealBoard Decision Affirmed
References
2
Case No. MISSING
Regular Panel Decision

In re the Claim of Sweet

A claimant, formerly a sewage treatment worker for a municipality, left his job and moved to Hawaii after receiving a conditional job offer at a tropical fish farm and his girlfriend's relocation there. Upon arrival, he discovered the position was no longer available. The Unemployment Insurance Appeal Board subsequently ruled that the claimant was disqualified from receiving unemployment insurance benefits, determining he had voluntarily left his employment without good cause. The appellate court affirmed the Board's decision, finding substantial evidence that the claimant failed to verify the job offer before moving and had primarily relocated for personal reasons without definite employment.

Unemployment benefitsVoluntary quitGood cause for leavingJob availabilityRelocation for personal reasonsDisqualification for benefitsAppellate reviewSubstantial evidenceMunicipality employmentHawaii job offer
References
0
Case No. MISSING
Regular Panel Decision

In re the Claim of Corchado

Claimant, an account executive for an industrial employment agency, was terminated for misconduct. He failed to contact temporary workers, leading to an insufficient workforce, despite receiving prior warnings for similar conduct. The Unemployment Insurance Appeal Board disqualified him from receiving unemployment insurance benefits, a decision upheld upon reconsideration. The Appellate Division affirmed this decision, ruling that actions detrimental to the employer's interest, especially after warnings, constitute disqualifying misconduct. The court found no reason to disturb the Board's resolution of credibility issues.

Unemployment BenefitsMisconductEmployment TerminationAccount Executive DutiesPrior WarningsAppellate ReviewCredibility DeterminationEmployer InterestDisqualification for BenefitsAdministrative Appeal
References
3
Case No. MISSING
Regular Panel Decision
Jul 07, 1988

In re Kaplan

Kenneth F. Kaplan, an attorney, was charged with professional misconduct, specifically the conversion of client funds. He received a $25,000 settlement check for his client, Josephine Burton, which he deposited into his fiancée's savings account and used for personal expenses, failing to maintain it in a proper escrow account for 5.5 years. Kaplan claimed he segregated cash in safe-deposit boxes, expecting to pay Burton in cash due to her being on welfare. The Departmental Disciplinary Committee's Hearing Panel rejected his defense, concluding he misappropriated his client's money and converted her funds. The court confirmed the Panel's findings and recommendations, ordering Kaplan's disbarment for the conversion of client funds.

Attorney misconductClient funds conversionEscrow account violationDisciplinary actionProfessional responsibilityCode of Professional ResponsibilityWorkers' Compensation LawSafe-deposit boxDisbarmentAttorney ethics
References
2
Case No. 2017 NY Slip Op 08244
Regular Panel Decision
Nov 22, 2017

Matter of New York State Workers' Compensation Bd. v. Murray Bresky Consultants, Ltd

This appeal concerns the allocation of settlement proceeds from a defunct group self-insured trust. The New York State Workers' Compensation Board, as administrator of the Manufacturing Self Insurance Trust Fund, sought judicial apportionment of settlement funds recovered from third parties. Murray Bresky Consultants, Ltd, a former member of the trust, objected to the Board receiving all proceeds and asserted a counterclaim for its share and an accounting. The Supreme Court granted the Board all proceeds and dismissed Murray Bresky's objections. The Appellate Division modified this decision, ruling that Murray Bresky was entitled to share in the jointly-recovered settlement proceeds and that the Board must file a verified accounting, remitting the matter for further proceedings.

Workers' Compensation LawSelf-Insurance TrustSettlement ProceedsJudicial ApportionmentVerified AccountingCPLR Article 77Contractual InterpretationTrust DeficitAppellate ReviewFiduciary Duty
References
13
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