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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 06248 [164 AD3d 1458]
Regular Panel Decision
Sep 26, 2018

Neve v. City of New York

Plaintiff Anthony Neve, a New York City Sanitation worker, was allegedly injured when the seat of a street sweeper he operated collapsed. He sued the City of New York for negligence. The City initiated third-party actions against Johnston Sweeper Company (manufacturer) and Seats, Inc. (seat manufacturer). Following the City's disposal of the sweeper, the plaintiff was granted an adverse inference charge for spoliation of evidence. Both the plaintiff and Johnston Sweeper Company moved for summary judgment, which the Supreme Court denied. The Appellate Division affirmed the Supreme Court's order, clarifying that the adverse inference charge did not eliminate the plaintiff's burden to prove all elements of his negligence claim, including the defect's existence and causation.

spoliation of evidencesummary judgmentadverse inferencenegligencepersonal injurythird-party actionproduct liabilityappellate reviewmunicipal liabilitysanitation worker
References
4
Case No. 2018 NY Slip Op 07114 [165 AD3d 1090]
Regular Panel Decision
Oct 24, 2018

McDonnell v. Sandaro Realty, Inc.

Matthew McDonnell was injured in a construction accident when a scaffold plank broke. He and his wife sued Sandaro Realty, Inc. (owner) and E.W. Howell Co., LLC (general contractor) for negligence and Labor Law violations. Howell then initiated a third-party action against subcontractors Bay Structures, Inc. (McDonnell's employer) and J&R Brick Masonry, Inc. (scaffold owner). The Supreme Court's order dated May 26, 2015, was appealed and cross-appealed by multiple parties regarding summary judgment motions on various claims including Labor Law violations, common-law negligence, spoliation of evidence, contractual indemnification, common-law indemnification, and breach of contract to procure insurance. The Appellate Division modified the Supreme Court's order by granting summary judgment to plaintiffs on the Labor Law § 240 (1) claim against Sandaro, granting Bay Structures summary judgment on common-law indemnification and contribution, denying J&R Brick Masonry's motion for summary judgment, denying several conditional summary judgment motions for indemnification by Sandaro and Howell, and modifying the spoliation sanction against Howell to an adverse inference charge instead of striking pleadings.

Personal InjuryConstruction AccidentScaffold FallLabor Law ViolationsSummary JudgmentSpoliation of EvidenceIndemnificationContractual IndemnificationCommon-Law IndemnificationBreach of Contract
References
34
Case No. 2024 NY Slip Op 04519
Regular Panel Decision
Sep 24, 2024

Hernandez v. Opera Owners, Inc.

The Appellate Division, First Department, reversed a Supreme Court order denying third-party defendant Poltech Inc.'s motion to dismiss or stay a third-party action. The court found that common-law claims against Poltech Inc. should be dismissed because the complaint did not allege a 'grave injury' as required by Workers' Compensation Law § 11 (1). Additionally, the remainder of the third-party action against Poltech Inc. was stayed because the contractual claims, asserted by third-party plaintiffs as third-party beneficiaries of a contract involving Poltech, were subject to the contract's Alternative Dispute Resolution (ADR) clause.

Workers' Compensation LawGrave InjuryThird-Party ActionContractual DisputeADR ClauseAppellate ReviewMotion to DismissStay of ProceedingsThird-Party Beneficiary
References
8
Case No. 2021 NY Slip Op 01354
Regular Panel Decision
Mar 09, 2021

Deschaine v. Tricon Constr., LLC

The New York Appellate Division, First Department, affirmed an order which granted motions to renew filed by third-party plaintiffs Dollar Tree Stores, Inc., Michael Boyle, and Tricon Construction, LLC along with C.P. Plaza Limited Partnership. The motions sought to vacate a previous order that had dismissed their third-party claims for contribution and common-law indemnification against AMZ Construction Services, Inc. Upon renewal, these claims were reinstated. The court found that new expert reports submitted by the plaintiff, Robert Deschaine, raised a factual dispute regarding whether he sustained a 'grave injury' as defined by Workers' Compensation Law § 11, specifically brain injuries that rendered him unemployable in any capacity. This issue of fact justified the renewal and reinstatement of the third-party claims.

Appellate PracticeRenewal MotionSummary JudgmentContribution ClaimsIndemnification ClaimsGrave InjuryWorkers' Compensation LawBrain InjuriesUnemployabilityProcedural Law
References
2
Case No. 2022 NY Slip Op 05756 [209 AD3d 495]
Regular Panel Decision
Oct 13, 2022

Lopez v. 157-161 E. 28th St., LLC

This case involves an appeal concerning the dismissal of second third-party claims for breach of contract, unpaid overtime wages, and breach of constructive trust related to a construction project. The Appellate Division affirmed the Supreme Court's decision, determining that New Wave Contracting Corp., a subcontractor, was the direct employer of the individual second third-party plaintiffs, not the general contractors Iceberg Developing Co., LLC and Forkosh Construction Co., Inc. The court also found that signed lien waivers and releases by the individual second third-party plaintiffs validly barred their wage and contract claims, as payment was accepted without objection. Furthermore, constructive trust claims were correctly dismissed due to the lack of contractual privity between the individual second third-party plaintiffs and the general contractors.

Construction ProjectSubcontractor LiabilityWage ClaimsLien LawSummary JudgmentEmployer-Employee RelationshipContractual PrivityRelease WaiverAppellate ReviewThird-Party Claims
References
8
Case No. 2018-11587 (Index No. 20807/15)
Regular Panel Decision
Dec 02, 2020

Broecker v. Conklin Prop., LLC

This case involves an appeal from an order in a fourth-party action concerning negligence and breach of contract. Conklin Property, LLC, a fourth-party plaintiff, sued Total Management Corp. and David Lande (appellants), alleging they failed to procure adequate insurance for a construction project after a worker was injured and died, leading to a disclaimer of coverage by the insurer. The Supreme Court denied the appellants' motion to dismiss the fourth-party complaint and granted Conklin's cross-motion to amend the complaint to include a cause of action for breach of fiduciary duty. The Appellate Division affirmed the lower court's decision, finding that Conklin sufficiently pleaded causes of action for negligence, negligent misrepresentation, and breach of contract. The court also determined that a special relationship existed between Conklin and the appellants, justifying the addition of a breach of fiduciary duty claim. Furthermore, the court found the actions to be within the statute of limitations, accruing on the date of the worker's injury.

NegligenceBreach of ContractInsurance Broker LiabilityNegligent MisrepresentationFiduciary DutyStatute of LimitationsFourth-Party ActionInsurance Coverage DisputeAppellate ReviewMotion to Dismiss
References
12
Case No. 2022 NY Slip Op 02063
Regular Panel Decision
Mar 24, 2022

Hasenzahl v. 44th St. Dev. LLC

The Appellate Division, First Department, considered an appeal concerning a Supreme Court order that granted a motion to sever and stay a second third-party action, and denied a motion for summary judgment. The court found that the Supreme Court providently exercised its discretion in severing and staying the second third-party action, citing that joint tortfeasors are not necessary parties. It further noted that Gateway and Woodworks' subcontracts provided for joint and several liability, allowing for apportionment in a separate proceeding. However, the Appellate Division modified the order by granting Gateway's motion for summary judgment, dismissing the common-law indemnification and contribution claims against it. This dismissal was based on the Workers' Compensation Law § 11, as the plaintiff, Gateway's employer, did not sustain a grave injury.

Appellate PracticeThird-Party ActionsSeverance and StaySummary JudgmentCommon-Law IndemnificationContribution ClaimsWorkers' Compensation LawGrave InjuryJoint and Several LiabilitySubcontractor Agreements
References
5
Case No. MISSING
Regular Panel Decision
Jan 03, 1997

Marte v. St. John's University

This case involves an appeal concerning an interlocutory judgment related to a personal injury action. The defendant third-party plaintiff appealed a jury verdict that favored the third-party defendant on liability. The appellate court examined the principles of indemnification and contribution under Labor Law § 240 (1) and Workers’ Compensation Law § 11, particularly when an owner is found partially at fault. It was determined that the trial court erred by not allowing the apportionment of fault between the third-party plaintiff and the third-party defendant. Consequently, the interlocutory judgment was reversed, and a new trial was granted solely on the issue of proper fault apportionment.

Personal InjuryThird-Party ActionLabor LawWorkers' Compensation LawApportionment of FaultIndemnificationContributionJury VerdictAppellate ReviewInterlocutory Judgment
References
8
Case No. 2023 NY Slip Op 03329
Regular Panel Decision
Jun 21, 2023

Castro v. Wythe Gardens, LLC

The plaintiff, a construction worker, sustained injuries after tripping in a gap between a staircase step and landing. He initiated an action against Express Builders, the general contractor, alleging violations of Labor Law sections 240(1) and 241(6). Express Builders then filed third-party claims seeking contractual indemnification. The Supreme Court initially granted the plaintiff's motion for summary judgment on liability and dismissed a third-party indemnification claim. The Appellate Division modified this ruling, determining that Labor Law section 240(1) and 12 NYCRR 23-1.7(b)(1)(i) were not applicable to the plaintiff's injuries as they did not involve elevation-related risks or a hazardous opening for a complete fall. However, the court affirmed the summary judgment for the plaintiff under Labor Law section 241(6), based on 12 NYCRR 23-1.7(e)(1) pertaining to tripping hazards. The Appellate Division also reinstated the contractual indemnification claim against Bayport Construction Corp., citing triable issues of fact, and upheld the denial of Express Builders' indemnification claims against Urban Precast and Urban Erectors due to unresolved questions regarding Express Builders' own negligence.

Construction AccidentLabor LawIndustrial Code ViolationSummary Judgment MotionContractual IndemnificationTripping HazardElevation-Related RiskAppellate DivisionPersonal InjurySubcontractor Agreement
References
17
Case No. 2025 NYSlipOp 07295
Regular Panel Decision
Dec 24, 2025

Morales v. 88th Ave. Owner, LLC

The plaintiff, Elihu Romero Morales, was injured at a construction site in Queens when struck in the eye by a spark from ironwork. He sued 88th Avenue Owner, LLC, and NY Developers & Managers, Inc., alleging violations of Labor Law §§ 240(1) and 241(6). The defendants then initiated a second third-party action against subcontractors Feinstein Iron Works, Inc., and Construction Realty Safety Group, Inc., for contribution and indemnification. The Supreme Court initially granted the plaintiff's motion for summary judgment on liability and dismissed the second third-party complaint with prejudice. The Appellate Division, Second Department, modified this order, denying the plaintiff's summary judgment motion, awarding summary judgment to the defendants on the Labor Law claims, and directing the dismissal of the second third-party complaint without prejudice due to a four-year delay in its commencement. The Court found Labor Law § 240(1) inapplicable as sparks are not objects requiring securing for elevation-related hazards, and 12 NYCRR 23-1.8(a) inapplicable as the plaintiff was not directly engaged in the eye-endangering operation.

Construction AccidentLabor LawSummary JudgmentElevation-Related HazardThird-Party ActionDismissal Without PrejudiceSparksEye InjurySubcontractor LiabilityOwner Liability
References
22
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