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

Case No. ADJ10765465
Regular
Mar 25, 2018

VIRAJ PATEL vs. TASA CORPORATION, DONALD AND MARIE FERGUSON, dba PROPERTY DAMAGE APPRAISERS OF SANTA CLARA COUNTY, uninsured, PROPERTY DAMAGE APPRAISERS, INC., insured by THE HARTFORD, UNINSURED EMPLOYERS BENEFITS TRUST FUND

The applicant, Viraj Patel, suffered a severe industrial injury while working as a vehicle appraiser. The Workers' Compensation Appeals Board (WCAB) granted reconsideration, overturning the trial judge's finding that Patel was an independent contractor. The WCAB found Patel was an employee of TASA Corporation and Property Damage Appraisers, Inc., based on factors like TASA's control over his work and the integral nature of his role. The case is remanded for further proceedings on compensation.

Workers' Compensation Appeals BoardIndependent contractorEmployee statusRight to controlBorello factorsFranchise agreementIndustrial injuryPTSDLoss of sightTASA Corporation
References
19
Case No. ADJ1511860
Regular
Jun 24, 2011

TIBERIO CALDERON MORENO vs. ACV APPRAISAL, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied the applicant's petitions for reconsideration. The applicant failed to adequately state grounds for error, instead marking all general grounds for reconsideration. The WCJ found the applicant to be an unreliable historian whose claimed injuries at ACV Appraisal were not supported by medical evidence and were contradicted by prior medical records of pre-existing conditions. The Board adopted the WCJ's report, which highlighted the applicant's poor credibility and lack of medical evidence linking his current conditions to the alleged employment injury.

WCABPetition for ReconsiderationFindings and OrdersWCJindustrial injuryherniaback injurypsychesexual dysfunctionsleep disorder
References
1
Case No. MISSING
Regular Panel Decision

Low v. Equity Programs, Ltd.

Plaintiffs, investors in limited partnerships, brought claims of securities fraud and state law claims against the defendants, who organized and managed these partnerships. Plaintiffs alleged that undisclosed fee payments to general partners inflated property appraisals, misrepresenting investment values. The court initially limited discovery to the impact of these undisclosed fees on appraisals. Appraisers testified that the fees, being partnership expenses not binding on future property purchasers, would not affect property valuations. Consequently, the court granted defendants' renewed motion for summary judgment, finding no evidence that the undisclosed fees could have materially impacted the appraised value of the properties. The court further dismissed the pendent state law claims without prejudice due to lack of subject matter jurisdiction.

Securities FraudLimited PartnershipsReal Estate AppraisalSummary JudgmentUndisclosed FeesMaterial OmissionCovenants Running with LandInvestment FraudRule 10b-5Private Placement Memoranda
References
21
Case No. MISSING
Regular Panel Decision
Jan 03, 2013

Clement v. United Homes, LLC

This Memorandum and Order addresses a motion to dismiss filed by real estate appraisers Maya and Abert Benshabat in a pro se plaintiff's action. The plaintiff alleges a predatory "property flipping" scheme involving multiple defendants, including real estate entities, a mortgage lender, and appraisers, leading to fraudulent financing and purchase of her home in 2005. Claims were brought under the Fair Housing Act, Civil Rights Act, Truth in Lending Act, and state/city laws, alleging discrimination and fraud through inflated appraisals and unfavorable mortgages. The court largely granted the Benshabats' motion, finding most of the plaintiff's claims time-barred by applicable statutes of limitations, and also gave notice for sua sponte dismissal of similar claims against other defendants. However, the state law fraud claim against the Benshabats was denied dismissal without prejudice.

Fair Housing ActCivil Rights ActTruth in Lending ActFraudMortgage FraudPredatory LendingReverse RedliningReal Estate AppraisalStatute of LimitationsEquitable Tolling
References
63
Case No. MISSING
Regular Panel Decision

Reyes v. Sequeira

Plaintiff Juan Reyes and defendant Rafael Sequeira, 50% owners of two dissolved corporations (SAR and 91 Graham Avenue Realty Corporation), were involved in a dispute over corporate assets. Reyes sued Sequeira for fraud, breach of fiduciary duty, and an accounting, alleging Sequeira attempted to sell properties and transfer funds without his consent. The parties entered a settlement stipulating that property values would be determined by averaging two appraisals. However, after one appraisal was disputed, a third was obtained, and the Supreme Court averaged all three, contrary to the stipulation. Defendant appealed this valuation order. During the pendency of the appeal, Supreme Court, with a new justice presiding, granted a motion to vacate the original stipulations of settlement, concluding that no binding agreement existed. The Appellate Division dismissed the appeal as moot because the underlying stipulations, which were foundational to the appealed order, had been vacated. Additionally, the court ruled that the order appealed from was non-appealable as it was issued sua sponte.

Corporate DissolutionShareholder DisputeProperty ValuationStipulation of SettlementMootness DoctrineAppealability of OrdersSua Sponte OrderBreach of Fiduciary DutyCorporate AccountingAppraisal Methods
References
37
Case No. MISSING
Regular Panel Decision

Polak v. Continental Hosts, Ltd.

The case involves two plaintiffs, Jack and Anthony Polak (shareholders of Continental Hosts, Ltd.), who filed a class action complaint alleging a violation of Rule 10(b)(5) of the Securities Exchange Act of 1934 against Continental Hosts, Ltd. and individual defendants. The Merger Plaintiff claimed the $12 per share merger price was inadequate and the Delaware appraisal right was an unfair burden. The Disclosure Plaintiff alleged selling shares at an artificially low price due to defendants' failure to disseminate financial information. The court, citing Santa Fe Industries, Inc. v. Green, held that an inadequate merger price and state appraisal rights do not constitute fraud or manipulation under Rule 10b-5. It also found no duty of disclosure for non-reporting companies or for individual defendants, and that the "disclose or abstain" rule only applies to contemporaneous traders, which the Disclosure Plaintiff was not. Consequently, the defendants' motion to dismiss the complaint was granted, with pendent state law claims also dismissed.

Securities LawRule 10b-5Motion to DismissClass ActionShareholder RightsCorporate MergersDuty to DiscloseInsider TradingDelaware LawFederal Jurisdiction
References
22
Case No. MISSING
Regular Panel Decision

Orchard Grove of Dutchess, Inc. v. State

The claimant, Orchard Grove of Dutchess, Inc., sought damages for the 1999 appropriation by the New York State Department of Transportation of its access rights to the Taconic State Parkway. The court determined that the claimant possessed no vested right of access—whether express, implied, prescriptive, or statutory—to the parkway. The State's prior allowance of a driveway was deemed a revocable license or gratuitous benefit, not a permanent legal right. Consequently, the court found no compensable taking of the claimant's property and dismissed the claim, also striking the claimant's appraisal for relying on a speculative subdivision development that lacked reasonable probability of approval.

Property RightsAccess RightsEminent DomainLand AppropriationHighway LawPrescriptive EasementAdverse PossessionGovernmental ImmunityProperty ValuationSpeculative Development
References
22
Case No. MISSING
Regular Panel Decision

Russell v. Cirillo

The plaintiff administrator appealed a $4,500 jury verdict in a wrongful death action, claiming the damages awarded were inadequate. The deceased, a 16-year-old, contributed financially to his parents, aged 36 and 37. The court found the jury inadequately appraised the parents' potential pecuniary benefit. The trial court's decision to admit evidence of the deceased's juvenile delinquency commitments was upheld, as such information is considered probative regarding character and habits relevant to damage assessment in wrongful death cases. The judgment was conditionally reversed for a new trial unless the defendant agreed to increase the verdict to $7,500 within 20 days, in which case the modified judgment would be affirmed.

Wrongful DeathInadequate DamagesJury VerdictAppellate ReviewCharacter EvidenceJuvenile DelinquencyPecuniary LossTrial ErrorConditional ReversalStipulation
References
0
Case No. MISSING
Regular Panel Decision

Rosenbloom v. New York State Tax Commission

The petitioner, a real estate appraiser, challenged an unincorporated business tax assessment imposed by the State Tax Commission for the years 1967-1973. The court referenced a prior ruling (Matter of Rosenbloom v State Tax Comm.) which established that the petitioner's activities did not constitute a profession, thus not exempting him from the tax. Finding no new evidence to warrant a change in position, the court upheld the commission's determination regarding the professional exemption. Furthermore, the petitioner's attempt to deduct the fair value of his wife's uncompensated services was denied, as the expense was neither paid nor incurred during the taxable year, failing to meet the criteria for ordinary and necessary business deductions. Consequently, the determination was confirmed, and the petition was dismissed.

real estate appraiserunincorporated business taxtax assessmentprofessional exemptionbusiness expenseCPLR Article 78State Tax CommissionAlbany Countyprior precedentdeduction denial
References
2
Case No. MISSING
Regular Panel Decision

Kourofsky v. Genencor International, Inc.

The plaintiffs, three former engineers, allege age discrimination under the ADEA and New York State Human Rights Law, claiming their employer, Genencor, terminated them in March 2003 due to their age during a reduction in force. They also filed a claim under the OWBPA regarding severance package releases, which Genencor concedes are ineffective. The District Court judge, Larimer, denies Genencor's motion for summary judgment on the disparate treatment claim, citing evidence of negative performance appraisals issued after termination, suspicious timing of job reassignments before the RIF, and statistical disparities in terminations. However, the court grants summary judgment to Genencor on the disparate impact claim, stating plaintiffs failed to identify a specific employment practice, and dismisses the OWBPA claim as it does not create an independent cause of action.

Age DiscriminationEmployment DiscriminationReduction in ForceDisparate TreatmentDisparate ImpactSummary Judgment MotionPretextPerformance AppraisalsOWBPANew York State Human Rights Law
References
35
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