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

Case No. Bankruptcy No. 02-42736(ALG), Adversary No. 02-08090
Regular Panel Decision
Mar 31, 2005

In Re Deguevara

This case involves Carmela L. DeGuevara's adversary proceeding to discharge student loans managed by Educational Credit Management Corporation (ECMC) under the "undue hardship" provision of the Bankruptcy Code. The United States Bankruptcy Court for the Southern District of New York applied the three-part Brunner test. The Court found that DeGuevara, a 46-year-old immigrant supporting her elderly, sick mother, could not maintain a minimal standard of living due to her low income, medical conditions, and persistent unemployment challenges. It concluded that her financial distress was likely to continue and that she had made good faith efforts to repay her loans, thereby granting the discharge.

BankruptcyStudent LoansUndue HardshipBrunner TestDependent SupportFinancial DistressEmployment SearchMedical ConditionsDebtor RightsChapter 7
References
36
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. MISSING
Regular Panel Decision

Thoms v. Educational Credit Management Corp. (In Re Thoms)

Kashima Thoms, a Chapter 7 debtor, initiated an adversary proceeding seeking the discharge of her substantial student loan obligations totaling $90,948.58, citing "undue hardship" under 11 U.S.C. § 523(a)(8). Educational Credit Management Corp. (ECMC) became the primary defendant, administering all of Thoms's student loans. The U.S. Bankruptcy Court applied the Second Circuit's stringent three-part Brunner test, which requires demonstrating an inability to maintain a minimal living standard, persistence of this hardship, and good faith repayment efforts. The Court found that Thoms, earning $48,000 annually, had sufficient disposable income, and her financial prospects were likely to improve, particularly with potential changes in childcare expenses and family living arrangements. Crucially, Thoms had made only minimal payments years prior and failed to utilize available loan restructuring options, thereby failing to prove good faith. Consequently, the Court ruled that Thoms did not establish undue hardship, denying the discharge of her student loan debts.

Bankruptcy LawStudent Loan DischargeUndue Hardship DoctrineBrunner TestChapter 7 BankruptcyAdversary ProceedingFinancial DistressRepayment EffortsFederal Student LoansDebtor-Creditor Law
References
4
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. CA 12-01329
Regular Panel Decision
May 03, 2013

MULLIN, CARL D. v. WASTE MANAGEMENT OF NEW YORK, LLC

Carl D. Mullin, an employee of Riccelli Enterprises, Inc., sustained injuries after falling from a ladder at a Waste Management of New York, LLC facility. Mullin initiated an action against Waste Management, which subsequently filed a third-party claim against Riccelli for breach of contract. Waste Management alleged that Riccelli failed to name it as an additional insured on various required insurance policies, including workers' compensation, commercial general liability, and automobile liability. The Supreme Court granted Waste Management's motion for partial summary judgment on the breach of contract claim. The Appellate Division unanimously affirmed the Supreme Court's order, also upholding the denial of Riccelli's motion to introduce new evidence, deeming it untimely and unlikely to alter the determination.

Breach of ContractInsurance CoverageAdditional Insured ClauseSummary Judgment MotionAppellate AffirmationThird-Party LitigationPersonal InjuryWorkplace AccidentLadder FallContractual Indemnity
References
2
Case No. MISSING
Regular Panel Decision

57th Street Management Corp. v. Zurich Insurance

The plaintiff, 57th Street Management Corp., sought a judgment declaring that Zurich Insurance Company, the defendant, had a duty to defend and indemnify it in an underlying negligence action initiated by an injured employee, Isaac Wilner, and a subsequent third-party action by Bade Cab Corp. Wilner was injured in 1984, received workers' compensation benefits from a policy issued by Zurich, and later sued 57th Street Management Corp. and Bade Cab Corp. The action against 57th Street Management Corp. was dismissed due to Workers' Compensation Law § 11. Bade Cab Corp. then served a third-party summons on the plaintiff. The Appellate Division reversed the Supreme Court's order, granting Zurich's cross motion for summary judgment. The court found that the plaintiff failed to provide timely notice to Zurich of the personal injury action, vitiating coverage, and that notice of the workers' compensation claim did not serve as notice for subsequent actions.

Insurance CoverageDuty to DefendDuty to IndemnifySummary Judgment AppealTimely Notice RequirementWorkers' Compensation ExclusivityThird-Party LiabilityNew York Appellate LawEmployer's Liability InsuranceVitiation of Coverage
References
5
Case No. 13-CV-2622
Regular Panel Decision

Dillon v. Ned Management, Inc.

Plaintiff Dillon accused her boss, Yacov Fridman, of sexual harassment, including inappropriate comments and physical contact. She also alleged retaliation after reporting the incidents, citing docked pay and eventual termination by Ned Management. Defendants, Ned Management, Joe Milligan, Eric Vainer, Polina Vainer, and Yacov Fridman, moved for summary judgment, claiming Dillon's termination was due to lateness. The court, presided over by Senior District Judge Jack B. Weinstein, denied the defendants' motion for summary judgment. The ruling determined that sufficient questions of material fact existed regarding hostile work environment, retaliation, and aiding and abetting claims under Title VII and NYCHRL against various defendants, warranting a trial. The claim for sexual assault and battery against Fridman also stands.

Sexual HarassmentRetaliationHostile Work EnvironmentEmployment DiscriminationTitle VIINYCHRLSummary JudgmentFederal Civil RightsIndividual LiabilitySupervisory Liability
References
63
Case No. MISSING
Regular Panel Decision
Jul 26, 2000

AIU Insurance v. Unicover Managers, Inc.

This case involves plaintiff insurance companies, AIG, seeking a declaration that defendant ReliaStar Life Insurance Company was bound to reinsure AIG for certain workers' compensation risks based on reinsurance slips signed by Unicover Managers, Inc., ReliaStar's managing general underwriter. The Supreme Court, New York County, dismissed AIG's complaint against ReliaStar and Unicover, and ReliaStar's third-party complaint against E.W. Blanch Company. The appellate court affirmed the dismissal, finding that the parties' correspondence and conduct established that reinsurance would only be bound upon ReliaStar's own signature, negating any actual or apparent authority of Unicover or ratification by ReliaStar. Estoppel and misrepresentation claims against both defendants were also dismissed. The judgment was modified to explicitly dismiss all remaining cross claims and counterclaims, and the initial dismissal was otherwise affirmed.

Reinsurance AgreementSummary JudgmentContract InterpretationAgency AuthorityApparent AuthorityRatificationEstoppelMisrepresentationWorkers' Compensation RisksCross Claims
References
3
Case No. 2015 NY Slip Op 04613
Regular Panel Decision
Jun 03, 2015

Kiskiel v. Stone Edge Management, Inc.

The injured plaintiff, Edward Kiskiel, a New York City sanitation worker, allegedly slipped and fell on a puddle of wet paint in a parking lot. The defendant, Stone Edge Management, Inc., managed an adjoining condominium complex that had an easement over the parking lot. The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint. On appeal, the Appellate Division, Second Department, reversed the order, holding that the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating it neither created the hazardous condition nor had actual or constructive notice of its existence. The court found the condition was transient and not visible prior to the accident, and there was no evidence, only speculation, that the defendant created it. Thus, the defendant's motion for summary judgment was granted.

Slip and FallPremises LiabilitySummary JudgmentConstructive NoticeHazardous ConditionParking Lot AccidentProperty ManagementAppellate ReviewNegligencePersonal Injury
References
4
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