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

Case No. 2016 NY Slip Op 00302 [135 AD3d 572]
Regular Panel Decision
Jan 19, 2016

Domaszowec v. Residential Management Group LLC

Plaintiff Tracy Domaszowec's decedent died from a fall while cleaning a window on the 13th floor of an apartment building. The Appellate Division, First Department, modified a Supreme Court order, granting plaintiff's motion for partial summary judgment on her Labor Law § 240 (1) claim against Residential Management Group LLC and 40 Fifth Avenue Corporation (40 Fifth defendants), the building owner and manager. The court found the decedent was engaged in "commercial window washing," thereby making Labor Law § 240 (1) applicable. The court affirmed the dismissal of Labor Law § 202 against Veronica Bulgari and Stephen Haimo due to lack of exclusive control, and common-law negligence claims against T&L Contracting of N.Y., Inc. and Greenpoint Woodworking Inc. due to the lack of an exception to the contractual obligation rule. Issues of fact precluded summary judgment on negligence claims against Panorama Windows, Ltd., and the doctrine of res ipsa loquitur was deemed inapplicable to certain defendants.

Window cleaner fatalityScaffold LawSummary judgment appealAppellate Division First DepartmentCommercial vs. routine window washingLabor Law applicabilityContractual tort liabilityRes ipsa loquitur in negligencePunitive damages dismissalExpert witness evidence
References
8
Case No. 13-00-313-CV
Regular Panel Decision
Nov 21, 2001

Montemayor, Rolando v. Chapa, Rolando, U.S.A., Waste-Management Resources, LLC, and Waste-Management of Texas, Inc., F/D/A U.S.A. Waste of Texas, Inc.

Rolando Montemayor, a temporary employee assigned to Waste Management, was injured in an automobile accident and received worker's compensation benefits through his general employer, Express Personnel Services. He subsequently sued Waste Management and its employee, Rolando Chapa, for negligence. The trial court granted summary judgment for the defendants, citing the borrowed servant and fellow servant doctrines, which bar common-law claims under the Texas Worker's Compensation Act's exclusive remedy provision. The Court of Appeals affirmed this decision, finding that Waste Management had the right of control over Montemayor, making him a borrowed servant, and Chapa a co-employee, thus upholding the summary judgment.

worker's compensationsummary judgmentborrowed servant doctrinefellow servant doctrinerespondeat superiortemporary employmentexclusive remedyTexas lawappellate reviewnegligence
References
18
Case No. 03-00-00127-CV
Regular Panel Decision
Aug 31, 2000

Renaissance Park and Renaissance Park Apartments v. Dora Davila

Dora Davila sued Renaissance Park and Renaissance Park Apartments for libel, slander, and negligence after a former landlord allegedly provided false rental history, preventing her from purchasing a house and renting another apartment. Davila obtained a no-answer default judgment against Renaissance for $1,222,400. Renaissance appealed, arguing improper service of process under Texas Property Code § 92.003 because Davila did not plead lack of written notice of a management company or owner, nor establish a landlord-tenant relationship with Renaissance. The appellate court found service improper as Davila failed to plead strict compliance with § 92.003 and did not allege a landlord-tenant relationship had ever existed with Renaissance. The court reversed the default judgment and remanded the case for further proceedings.

restricted appealdefault judgmentservice of processlandlord-tenant lawTexas Property Codestatutory interpretationappellate procedureimproper servicepersonal jurisdictionlibel
References
27
Case No. MISSING
Regular Panel Decision

Tuttle v. Housing Opportunities Management & Essential Services, Inc.

The plaintiff, a 30-year-old man diagnosed with retardation, suffered severe burns from an assault by a friend in his apartment. He resided in an intensive supportive apartment provided by Housing Opportunities Management and Essential Services, Inc. (H.O.M.E.S.), a non-profit organization offering housing for individuals with psychiatric or developmental conditions within a state-authorized community living program. While H.O.M.E.S. staff and other therapists had approved his move to this less restrictive setting, concerns arose regarding friends taking advantage of him, leading H.O.M.E.S. to initiate a discharge process for him to move to a more supervised environment, which was not completed before the incident. The court deliberated on whether H.O.M.E.S. owed a duty to protect the plaintiff from a third party's criminal acts. Citing Mental Hygiene Law and various precedents, the court concluded that H.O.M.E.S. had no such special duty, emphasizing that the community care system prioritizes individual liberties and the assault by the friend was not reasonably foreseeable. Consequently, the motion to dismiss the complaint was granted.

Community HousingDevelopmental DisabilitiesPsychiatric ConditionsNegligenceDuty of CareForeseeabilityThird-Party Criminal ActsMental Hygiene LawCommunity Care SystemResidential Programs
References
10
Case No. MISSING
Regular Panel Decision
Jul 14, 1981

J. A. R. Management Corp. v. Sweeney

J. A. R. Management Corp. sold an apartment building to J. R. R. Realty Co., allegedly violating a collective bargaining agreement with Local 32B-32J S.E.I.U., AFL-CIO by failing to give notice and ensure the buyer adopted the agreement. The union initiated arbitration against both J. A. R. and J. R. R. and filed unfair labor practice charges with the National Labor Relations Board (NLRB) against J. R. R. Petitioners J. A. R. and J. R. R. sought to vacate the arbitration notice, arguing NLRB pre-emption. The Supreme Court granted their motion. On appeal, the judgment was modified: the notice to arbitrate was vacated only for J. R. R. Realty Co., while the motion against J. A. R. Management Corp. was denied. Arbitration against J. A. R. is stayed pending the NLRB's resolution of claims against J. R. R., after which arbitration may proceed for any unresolved disputes arising from the collective bargaining agreement.

ArbitrationCollective Bargaining AgreementNLRB Pre-emptionVacate Notice to ArbitrateEmployer-Union DisputeSale of BusinessSuccessor EmployerUnfair Labor PracticesStay of ArbitrationAppellate Review
References
2
Case No. MISSING
Regular Panel Decision

Renaissance Park v. Davila

Davila sued Renaissance Park and Renaissance Park Apartments alleging libel, slander, and negligence after a previous apartment complex, Chimney Hill, reported false rental history, preventing her from buying a house and renting an apartment. Davila sought to serve Renaissance via an on-premise manager under Texas Property Code § 92.003, resulting in a no-answer default judgment for $1,222,400. Renaissance filed a restricted appeal, arguing improper service. The appellate court agreed that Davila failed to strictly comply with § 92.003 by not pleading that she lacked written notice of the management company or owner, and by not alleging a landlord-tenant relationship ever existed between herself and Renaissance. Consequently, the court reversed the default judgment and remanded the case.

Default judgmentService of processLandlord-tenant lawProperty CodeRestricted appealStatutory constructionAppellate reviewLibelSlanderNegligence
References
25
Case No. 08-00-00114-CV
Regular Panel Decision
Aug 22, 2002

SCM Management, Inc./Manuela Ortiz v. Ortiz, Manuela/SCM Management, Inc.

Manuela Ortiz, a housekeeper, sued SCM Management, Inc. for wrongful discharge under the Texas Worker's Compensation Act, alleging retaliation for her intent to file a worker's compensation claim due to worsening hand pain. A jury found in favor of Ortiz, awarding damages for lost wages and mental anguish, but the trial court excluded exemplary damages. SCM appealed, challenging the sufficiency of evidence for retaliatory discharge, lost wages, and mental anguish. Ortiz cross-appealed the denial of exemplary damages. The appellate court affirmed the trial court's judgment, upholding the findings for retaliatory discharge, lost wages, and mental anguish, but agreed that there was insufficient evidence for exemplary damages.

Worker's CompensationRetaliatory DischargeEmployment LawMental AnguishExemplary DamagesSufficiency of EvidenceLost WagesMitigation of DamagesTexas Labor CodeAppellate Review
References
28
Case No. MISSING
Regular Panel Decision
Oct 20, 1993

Olsen v. We'll Manage, Inc.

The case concerns an appeal by We'll Manage, Inc. from an order denying its cross motion for summary judgment in an action brought by plaintiff Gary Olsen under Labor Law §§ 240 and 241. We'll Manage, Inc. contended that Olsen was its special employee, providing evidence of direct supervision, work assignments, the right to fire him, and payment signed by its personnel, despite his wages being drawn from a general employer's account. The court found this established a special employment relationship. As Olsen received workers' compensation benefits from his general employer, he is statutorily barred from maintaining an action against the special employer. Consequently, the appellate court reversed the lower court's order, granted We'll Manage, Inc.'s cross motion, and dismissed the complaint against the appellant.

Special EmployeeWorkers' Compensation BarSummary JudgmentLabor LawDirect SupervisionControlAffidavitDeposition TestimonyGeneral EmployerAppellate Reversal
References
6
Case No. ADJ8094646
Regular
Jan 17, 2014

ALEJANDRINA BARRETO vs. OUT OF THE SHELL, SOUTHERN INSURANCE COMPANY, REPUBLIC INDEMNITY COMPANY, PHARMAFINANCE, LLC, HEALTHCARE FINANCE MANAGEMENT, LLC

This case involves lien claimants PharmaFinance and Healthcare Finance Management, and their representatives Landmark Medical Management and Brian Hall, who sought reconsideration of a decision disallowing their liens for medical treatment. The Appeals Board granted reconsideration solely to notice its intention to impose sanctions of up to $2,500 against the lien claimants and their representatives. This action is due to a pattern of allegedly filing petitions containing false statements about not receiving notices, which violates the Board's Rules of Practice and Procedure and Labor Code Section 5813. The Board found these claims not persuasive and indicative of a tactic to avoid responsibility.

Workers' Compensation Appeals BoardPetition for ReconsiderationSanctionsLien ClaimantsHearing RepresentativesIndustrial InjuryFindings and OrderCompromise and ReleaseNotice of IntentionLabor Code section 5813
References
0
Case No. MISSING
Regular Panel Decision

Ramirez v. BB & BB Management Corp.

The Supreme Court, Bronx County, granted summary judgment to defendants BB and BB Management Corp., Gesher Realty Corp., and Felix Gomez, dismissing the complaint against them. This decision was unanimously affirmed without costs. The plaintiff failed to raise a triable issue of fact regarding the foreseeability of the assault on him. Evidence such as general complaints about criminal elements in the neighborhood, police reports of an apartment robbery, and two incidents of car vandalism were deemed insufficient to demonstrate that the assault was reasonably predictable. Additionally, while the plaintiff testified that the front door lock was broken, there was no evidence indicating how long it had been broken or that the defendants had been notified. Consequently, the defendants' Worker's Compensation defense was rendered moot.

ForeseeabilityAssaultSummary JudgmentPremises LiabilityNegligenceWorker's CompensationAppellate ReviewBroken LockCriminal ActivityNotice
References
2
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