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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

Alpha Interiors, Inc. v. Tulger Construction Corp.

Alpha Interiors, a subcontractor, sued Tulger Construction, the general contractor, for breach of contract and unpaid sums on a construction project. Tulger argued Alpha breached the contract by violating Labor Law § 220, specifically by forcing workers to kick back portions of their supplements. The Supreme Court initially denied Tulger's motion for summary judgment. However, the appellate court reversed this decision, finding that Alpha's admitted illegal conduct was central to its performance and thus precluded recovery on the contract due to public policy. The appellate court affirmed the denial of sanctions against Alpha.

Breach of contractsubcontractor disputegeneral contractorLabor Law § 220prevailing wagekickback schemesummary judgmentillegal performancepublic policy defensecontract forfeiture
References
5
Case No. MISSING
Regular Panel Decision

Emspak v. Conroy

The defendants moved for a further bill of particulars regarding item 30 and requested the entire bill be verified by a union officer. The plaintiff's attorney acknowledged the omission for item 30 was an oversight and agreed to provide it. He argued his self-verification was proper under subdivision 3 of rule 99 of the Rules of Civil Practice, citing the plaintiff's absence from the county, and claimed defendants waived objection by not returning the bill within 24 hours. The court clarified that Rules 10 and 11 do not apply to verification. While an attorney can verify a bill of particulars under rule 117, the court ruled that merely stating the party is out of county is insufficient; the attorney must also detail the basis of their knowledge, especially given a prior order requiring an oath for inability to furnish particulars. The motion for a further bill was granted.

Bill of particularsVerificationAttorney verificationRules of Civil PracticeWaiverMotionCourt procedurePleadingSufficiency of verification
References
3
Case No. MISSING
Regular Panel Decision

Hojnowski v. Buffalo Bills, Inc.

David Hojnowski, a former equipment manager for the Buffalo Bills, sued his former employer alleging age discrimination under the Age Discrimination in Employment Act, New York State Human Rights Law, and violations of the Employee Retirement Income Security Act. The Buffalo Bills moved to dismiss the claims and compel arbitration, citing an arbitration clause in Hojnowski's employment contract. Hojnowski contended that the arbitration agreement was unenforceable due to the absence of arbitration rules and unconscionability. The court determined that the arbitration rules were sufficiently incorporated into the agreement and that the contract was not unconscionable. Consequently, the court granted the Bills' motion, compelling Hojnowski to arbitration and dismissing his complaint.

Arbitration AgreementEmployment LawAge DiscriminationERISANew York State Human Rights LawMotion to DismissContract EnforceabilityUnconscionability DefenseFederal Arbitration ActNFL Commissioner
References
25
Case No. ADJ8485371
Regular
Dec 01, 2014

MICHAEL (MIKE) STRATTON vs. SAN DIEGO CHARGERS, ZENITH NORTH AMERICA, BUFFALO BILLS

The Workers' Compensation Appeals Board reconsidered a prior decision regarding Michael Stratton's cumulative injury claim against the San Diego Chargers and Buffalo Bills. While the original judge found Stratton's claim against the Bills timely, the Board reversed this, determining it was barred by the statute of limitations. The Board found that neither employer breached a duty to notify Stratton of his workers' compensation rights at the time of his employment. Therefore, the statute of limitations was not tolled, and Stratton's claim against the Buffalo Bills is dismissed.

WCABStatute of LimitationsLabor Code Section 5405Date of InjuryTollingCumulative InjuryProfessional Football PlayerSan Diego ChargersBuffalo BillsZenith North America
References
17
Case No. MISSING
Regular Panel Decision
Apr 21, 2004

Zenteno v. Geils

The defendants appealed an order from the Supreme Court, Westchester County, which granted the plaintiff's motion to restore a personal injury action to the trial calendar and for leave to serve a supplemental bill of particulars. The Appellate Division affirmed the order, finding that the plaintiff demonstrated a meritorious cause of action and a reasonable excuse for delay, citing extensive medical evaluations and difficulties obtaining authorization from the Workers’ Compensation Board. The court also determined that the defendants were not prejudiced by the restoration. Furthermore, an alleged agreement to proceed to arbitration was deemed unenforceable due to non-compliance with CPLR 2104 "open court" requirements. Finally, the Supreme Court's decision to grant leave for a supplemental bill of particulars was upheld, as it pertained to continuing consequences of existing injuries rather than new ones, aligning with CPLR 3043 [b].

Personal InjuryTrial Calendar RestorationSupplemental Bill of ParticularsArbitration Agreement EnforcementCPLR 2104CPLR 3043Medical ExaminationsWorkers' Compensation IssuesAppellate ReviewProcedural Motion
References
20
Case No. MISSING
Regular Panel Decision
Oct 08, 2009

D'Elia v. City of New York

The plaintiff appealed an order from the Supreme Court, Queens County, concerning personal injuries sustained while working as a surveyor. The original order granted summary judgment to defendants on common-law negligence and Labor Law §§ 200 and 241(6) claims, and denied the plaintiff's cross-motion to amend his bill of particulars to include a violation of 12 NYCRR 23-1.23. The appellate court modified the order, granting the plaintiff's cross-motion for leave to amend his bill of particulars and denying summary judgment to defendants on the Labor Law § 241(6) claim. However, the court affirmed the dismissal of common-law negligence and Labor Law § 200 claims, finding defendants lacked supervisory authority over the plaintiff's work. The case involved an alleged fall on a steeply inclined slope made of loosely compacted dirt and rocks at a construction site.

Personal InjuryLabor LawSummary JudgmentBill of Particulars AmendmentConstruction Site AccidentWorkplace SafetyIndustrial Code ViolationNegligenceAppellate ReviewEarthen Slope Fall
References
13
Case No. MISSING
Regular Panel Decision

Hornacek v. Zurich Insurance

This case addresses a dispute over discovery in a personal injury action arising from a December 14, 1974, automobile accident. The plaintiff, suffering from complete amnesia due to a severe head injury, sought to recover basic economic loss from his automobile insurer. The defendant insurer denied coverage, citing an exclusion for intoxication as an affirmative defense. Plaintiff moved under CPLR 3041 to compel the defendant to provide a bill of particulars detailing witnesses and documentary evidence supporting the intoxication defense. Defendant cross-moved to vacate or modify this demand, arguing the information was evidentiary. The court, recognizing the plaintiff's amnesia as a 'special circumstance,' granted the plaintiff's motion in part, ordering the defendant to disclose the requested information to ensure fairness and prevent surprise at trial, while denying the defendant's motion to vacate.

Bill of ParticularsAffirmative DefenseAmnesiaIntoxication ExclusionInsurance CoverageSpecial CircumstancesEvidentiary DisclosureCPLR 3041CPLR 3123Automobile Accident
References
9
Case No. MISSING
Regular Panel Decision

Alpha Capital Anstalt v. Oxysure Systems, Inc.

Plaintiffs Alpha Capital Anstalt and Osher Capital Partners, LLC sued Oxysure Systems Inc. and Julian Ross for breach of their Securities Purchase Agreement (SPA). Plaintiffs moved for summary judgment, alleging Oxysure breached the SPA by incurring excessive indebtedness, issuing Series C, D, and E stock, and failing to file Form 10Ks. The court denied the motion, finding genuine issues of material fact regarding the SPA's interpretation concerning convertible notes and stock issuances. The court also ruled that Defendants' affirmative defense of an unregistered broker-dealer was time-barred and that the failure to file Form 10K was not pleaded in the complaint. The decision also noted that Plaintiffs' interpretation of the SPA could violate public policy by unduly restricting Oxysure's ability to raise capital.

Securities Purchase AgreementBreach of ContractSummary Judgment MotionFederal Rules of Civil Procedure Rule 56Variable Rate SecuritiesIndebtednessCorporate GovernancePublic PolicySecurities Exchange Act of 1934Statute of Limitations
References
19
Case No. ADJ6943627
Regular
Feb 11, 2013

BILL MCINNES vs. VICENTE FOODS, COMPWEST INSURANCE COMPANY

This case involves untimely petitions for reconsideration filed by the applicant, Bill McInnes. The Workers' Compensation Appeals Board (WCAB) dismissed these petitions because they were filed more than twenty days after the WCJ's decision, with no mailing extension applicable due to personal service. Even if timely, the petitions would have been denied on the merits based on the WCJ's report. Additionally, the applicant's attorney's letter, attempting to serve as a reconsideration petition, was also dismissed as both untimely and insufficient.

Petition for ReconsiderationUntimely FilingLabor Code Section 5903Mailing ExtensionCode of Civil Procedure Section 1013WCAB Rule 10507Jurisdictional Time LimitPersonal ServiceStrom v. WCABSkeletal Petition
References
5
Case No. ADJ2105435 (EUR 0031083) ADJ489780 (EUR 0031084)
Regular
Nov 14, 2008

Bill Chilcutt vs. HINTZ CONSTRUCTION, STATE COMPENSATION INSURANCE FUND EUREKA

This case involves Bill Chilcutt's workers' compensation claim for back and neck injuries. The appeals board granted reconsideration, rescinding the prior determination that found good cause to reopen the cumulative trauma claim and awarding 59% permanent disability. The matter is remanded for further proceedings to address issues of psychiatric disability causation, orthopedic apportionment in light of recent case law, and the effect of a prior stipulation regarding benefit payment. The claim for the specific 1995 injury was correctly deemed untimely.

Workers' Compensation Appeals BoardReconsiderationCumulative TraumaSpecific InjuryPermanent DisabilityApportionmentAgreed Medical ExaminerPetition to ReopenGood CauseFive-Year Limitation
References
6
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