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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 01728
Regular Panel Decision
Mar 12, 2019

O'Dwyer v. Law Offs. of Rex E. Zachofsky, PLLC

This case involves a fee-sharing dispute between Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P. (plaintiff) and The Law Offices of Rex E. Zachofsky, PLLC (defendant) concerning Workers' Compensation cases. The plaintiff moved to compel discovery, and the defendants moved for partial summary judgment on the breach of contract claim. The Supreme Court initially denied both motions. On appeal, the Appellate Division, First Department, modified the order by granting the plaintiff's discovery motion, allowing access to the Workers' Compensation Board's eCase system for referred cases. The court affirmed the denial of partial summary judgment for the defendants, noting that the breach of contract claim could not be resolved as a matter of law due to evidence of the plaintiff's firm's participation. An appeal and cross-appeal from a subsequent order denying reargument were dismissed as nonappealable.

Fee-sharing agreementBreach of contractRules of Professional ConductDiscovery disputeWorkers' Compensation casesAppellate reviewSummary judgmentAttorney responsibilityE-discoveryLegal ethics
References
3
Case No. 2016 NY Slip Op 08049 [144 AD3d 1099]
Regular Panel Decision
Nov 30, 2016

Ingvarsdottir v. Gaines, Gruner, Ponzini & Novick, LLP

Helga Ingvarsdottir sued Gaines, Gruner, Ponzini & Novick, LLP for legal malpractice, alleging failure to provide timely notice for an unpaid wages claim under Business Corporation Law § 630 (a). The Supreme Court denied the law firm's motion to dismiss the complaint. On reargument, the Supreme Court adhered to its original decision and granted the third-party defendant's motion to dismiss. The Appellate Division, Second Department, reversed, finding that the 180-day notice period under Business Corporation Law § 630 (a) had expired before the law firm was retained. The court also determined that statutory insanity or equitable tolling doctrines did not apply to the condition precedent. Consequently, the Appellate Division modified the order by granting the law firm's motion to dismiss the complaint.

Legal MalpracticeBusiness Corporation LawCPLR 3211(a) Motion to DismissCondition PrecedentEquitable TollingInsanity TollUnpaid Wages ClaimH-1B Visa IssuesAttorney-Client RelationshipAppellate Review
References
19
Case No. 525867
Regular Panel Decision
May 17, 2018

Matter of Murtha v. Verizon N.Y. Inc.

Claimant Bryon J. Murtha sustained injuries while working for Verizon New York Inc. and filed for workers' compensation benefits. A WCLJ established the claim and later denied authorization for surgery, assessing a penalty against claimant's counsel, Grey and Grey, LLP, for dilatory tactics. The Workers' Compensation Board upheld the denial of surgery but found the WCLJ improperly assessed the penalty under Workers' Compensation Law § 25 (3) (c), instead assessing it under Workers' Compensation Law § 114-a (3) (i) for the firm's alleged failure to ensure physicians' availability for depositions. The Appellate Division, Third Department, reversed the Board's assessment of a penalty against Grey and Grey, LLP, finding that Workers' Compensation Law § 114-a (3) (i) does not authorize penalties against counsel, and even if it did, substantial evidence did not support the claim that the firm was responsible for the physicians' non-compliance with subpoenas, as enforcement was the carrier's responsibility.

Workers' Compensation BenefitsMonetary Penalty AssessmentDilatory TacticsAttorney MisconductStatutory AuthorizationAppellate ReviewMedical DepositionsSubpoena EnforcementCarrier ResponsibilityClaimant Counsel
References
5
Case No. 2024 NY Slip Op 05612 [232 AD3d 1011]
Regular Panel Decision
Nov 14, 2024

Matter of Gonzalez v. Northeast Parent & Child Socy.

Claimant Wilfredo Gonzalez filed a workers' compensation claim after an injury in October 2021. The claim was established, and his counsel was granted an initial fee. Following the carrier's late payment of awards, penalties were assessed against the carrier payable to the claimant. Claimant's counsel sought an additional $480 in fees, approximately 15% of the assessed penalties, which was denied by the Workers' Compensation Law Judge and upheld by the Workers' Compensation Board. The Appellate Division, Third Department, affirmed these denials, ruling that the amended Workers' Compensation Law § 24 does not provide for the award of counsel fees payable from penalties imposed under Workers' Compensation Law § 25 or otherwise.

Counsel FeesWorkers' Compensation LawLate Payment PenaltiesStatutory InterpretationAppellate ReviewBoard DecisionsClaim EstablishmentAttorney FeesJudiciary Law
References
3
Case No. 2015 NY Slip Op 04773 [129 AD3d 471]
Regular Panel Decision
Jun 09, 2015

Serowik v. Leardon Boiler Works Inc.

Jozef Serowik, an employee of GDT, sustained severe hand injuries while lowering a heavy tank, which was part of a boiler installation. The incident led to claims under Labor Law sections. The Supreme Court, Bronx County, initially granted Serowik partial summary judgment on liability under Labor Law § 240 (1). Defendants appealed, and the Appellate Division, First Department, modified the Supreme Court's order. The appellate court dismissed Serowik's common law negligence and Labor Law § 200 claims, and granted conditional summary judgment on common law indemnification to the defendants. However, the Appellate Division affirmed the finding of liability against defendants under Labor Law § 240 (1), determining that Leardon Boiler Works Inc. could be held liable as an agent of the owner.

Labor LawWorkplace InjurySummary JudgmentIndemnificationAppellate ReviewGravity AccidentScaffolding LawOwner LiabilityContractor LiabilityProximate Cause
References
5
Case No. 2022 NY Slip Op 06475 [210 AD3d 884]
Regular Panel Decision
Nov 16, 2022

Kreutzberg v. Law Offs. of John Riconda, P.C.

The plaintiff, Thomas Kreutzberg, commenced an action to recover damages for legal malpractice against the Law Offices of John Riconda, P.C. The plaintiff alleged that the defendants failed to obtain the required consent from his workers' compensation carrier for the settlement of a no-fault and personal injury claim in 2009, violating Workers' Compensation Law § 29 (5). The defendants moved to dismiss the complaint as time-barred under CPLR 3211 (a) (5). The Supreme Court, Suffolk County, granted the motion, ruling that the three-year statute of limitations for legal malpractice accrued in 2009 and had expired by the time the action was commenced in 2020. The Appellate Division, Second Department, affirmed the Supreme Court's order, concluding that the defendants successfully established the action was time-barred and the plaintiff failed to raise a question of fact in opposition.

Legal MalpracticeStatute of LimitationsCPLR 3211 (a) (5)Workers' Compensation Law § 29 (5)Appellate DivisionSuffolk CountyTime-barred claimConsent RequirementNo-fault claim settlementPersonal injury action settlement
References
11
Case No. 2025 NY Slip Op 02370 [237 AD3d 1139]
Regular Panel Decision
Apr 23, 2025

Whitfield v. Law Enforcement Employees Benevolent Assn.

The plaintiff, John "Divine G" Whitfield, doing business as Divine G Entertainment, appealed an order from the Supreme Court, Kings County, which granted the defendants' motion to dismiss his amended complaint. Whitfield had sued Law Enforcement Employees Benevolent Association (LEEBA) and its members for fraud and unjust enrichment, alleging inadequate payment for website and paralegal services. The Appellate Division affirmed the Supreme Court's decision, finding that Whitfield failed to adequately allege injury for fraud and that civil conspiracy claims stand or fall with the underlying tort. The court also determined that defendants were not unjustly enriched and that the plaintiff failed to establish an employer-employee relationship necessary for Labor Law and FLSA claims. Additionally, claims for intentional and negligent infliction of emotional distress were dismissed for failing to meet rigorous standards, and piercing the corporate veil was not adequately pleaded.

FraudUnjust EnrichmentEmployment RelationshipQuantum MeruitLabor LawFLSAEmotional DistressCorporate VeilPiercing Corporate VeilPleading Sufficiency
References
26
Case No. 2020 NY Slip Op 00545 [179 AD3d 599]
Regular Panel Decision
Jan 28, 2020

Sotarriba v. 346 W. 17th St. LLC

Plaintiff, an electrical worker, sustained serious injuries after falling through an unprotected stairwell opening at a construction site. The Supreme Court initially granted partial summary judgment to the plaintiff on a Labor Law § 240 (1) claim and dismissed other claims. The Appellate Division modified the order, reinstating parts of the Labor Law § 241 (6), § 200, and common-law negligence claims against defendant McGowan Builders Inc. The court also granted summary judgment to Technetek Ltd., dismissing claims against it, reasoning that Technetek's role in installing barricades was for warning, not fall prevention, and did not create or exacerbate a dangerous condition. Furthermore, the Appellate Division affirmed the dismissal of contribution and common-law indemnification claims against Sigma Electric, Inc., concluding that plaintiff did not sustain a "grave injury" under Workers' Compensation Law § 11.

Construction AccidentFall from HeightStairwell OpeningLabor LawIndustrial Code ViolationGeneral Contractor LiabilitySupervisory ControlContributionCommon-Law IndemnificationGrave Injury
References
13
Case No. 2019 NY Slip Op 05955 [174 AD3d 850]
Regular Panel Decision
Jul 31, 2019

Davies v. Simon Prop. Group, Inc.

The plaintiff, Gerald Davies, was injured while pushing a cart of concrete over a plywood sheet that covered a hole at a construction site. He initiated an action against the premises operator, Simon Property Group, Inc., the general contractor, E.W. Howell Co., LLC, and the sidewalk removal company, Ruttura & Sons Construction Co., Inc., alleging common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). E.W. Howell Co., LLC also filed a third-party action against Allstate Interior Demolition Corporation, the plaintiff's employer, seeking contractual indemnification. The Supreme Court's initial order, which partially granted and denied various summary judgment motions, was subject to appeals and cross-appeals. The Appellate Division ultimately reversed the order in part, granting Ruttura & Sons Construction Co., Inc.'s motion for summary judgment on the Labor Law § 200 and common-law negligence claims, and denying Simon Property Group, Inc. and E.W. Howell Co., LLC.'s motion to dismiss the Labor Law §§ 240 (1) and 241 (6) causes of action. The Appellate Division affirmed the denial of Simon Property Group, Inc. and E.W. Howell Co., LLC.'s motion concerning Labor Law § 200, common-law negligence, and contractual indemnification.

Personal InjuryConstruction AccidentLabor LawPremises LiabilitySummary JudgmentContractual IndemnificationElevation DifferentialScaffold LawIndustrial CodeSafe Work Environment
References
15
Case No. 2019 NY Slip Op 06477 [175 AD3d 1253]
Regular Panel Decision
Sep 11, 2019

Graziano v. Source Bldrs. & Consultants, LLC

The Appellate Division, Second Department, reviewed a personal injury case where Guy Graziano was injured on a construction site. The court modified an order from the Supreme Court, Suffolk County, concerning claims of common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). Specifically, the appellate court reversed the grant of summary judgment dismissing claims under Labor Law § 200 and common-law negligence against the defendants, finding triable issues of fact regarding dangerous conditions and the manner of work. However, it affirmed the dismissal of Labor Law § 241 (6) claims due to the inapplicability of cited Industrial Code provisions. The court also adjusted rulings on contractual indemnification claims between the defendants.

Construction AccidentPersonal InjuryLabor Law § 240 (1)Labor Law § 200Common-Law NegligenceSummary JudgmentContractual IndemnificationScaffold LawElevation-Related RiskUnsafe Workplace
References
20
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