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

Case No. 2:16-cv-3974
Regular Panel Decision

Burns v. Cnty. of Nassau

The Court addressed a motion to dismiss based on the first-filed rule, involving two collective actions, Burns et al v. County of Nassau et al and Arciello et al v. County of Nassau et al, both concerning similar wage and hour claims against the County. While finding the first-filed rule applicable due to substantial overlap in parties and claims, the Court denied dismissal. Instead, to prevent prejudice to plaintiffs regarding the statute of limitations, and to conserve judicial resources, it ordered the consolidation of the Burns action with the Arciello action. All future proceedings for the consolidated case will occur under the Arciello case number.

Collective ActionFirst-Filed RuleConsolidationMotion to DismissOverlapping ClaimsJudicial EconomyStatute of LimitationsEastern District of New YorkFair Labor Standards ActWage and Hour
References
20
Case No. MISSING
Regular Panel Decision

Burns Electric Co. v. Walton Street Associates

This appeal addresses whether a contractor, Burns Electric Co., Inc., can compel a developer, Walton Street Associates, to allow inspection of its books and records under Lien Law § 76. Walton, a vendee in possession of property owned by the Syracuse Industrial Development Agency (SIDA), argued it was an 'owner' and the project a 'public improvement', exempting it from such demands. The court held that while SIDA, as a public agency, is immune, Walton acts as a 'contractor' by engaging subcontractors for the improvement, despite also being an 'owner'. Therefore, Burns is entitled to inspect Walton's financial records to ensure trust funds are used to pay improvement costs. The Special Term's order permitting the relief requested was unanimously affirmed.

Lien LawPublic ImprovementPrivate ImprovementContractor StatusOwner StatusVendee in PossessionTrust FundBooks and Records InspectionMechanics' LienIndustrial Development Agency
References
12
Case No. 2024 NY Slip Op 00187
Regular Panel Decision
Jan 17, 2024

McGlynn v. Burns & Harris, Esq.

In this legal malpractice action, William McGlynn sued attorneys Burns & Harris, Esq., and Allison R. Keenan for failing to notify insurance carriers in a prior personal injury case, preventing him from collecting a judgment. The defendants moved for summary judgment, arguing judicial estoppel applied due to McGlynn's workers' compensation claim with an inconsistent injury theory. The Supreme Court granted summary judgment to the defendants and denied McGlynn's cross-motion to strike their answer for spoliation of evidence. On appeal, the Appellate Division, Second Department, reversed the summary judgment for the defendants, finding that multiple proximate causes for injuries are possible and the judicial estoppel doctrine might not preclude recovery. The court affirmed the denial of McGlynn's cross-motion for spoliation of evidence, determining he failed to show an obligation to preserve the evidence or a culpable state of mind.

legal malpracticesummary judgmentjudicial estoppelspoliation of evidenceproximate causeinsuranceappellate reviewattorney's dutycausationdamages
References
15
Case No. MISSING
Regular Panel Decision
Nov 03, 2006

Burns v. Cook

Plaintiff Debra A. Burns brought an action against Oren F. Cook, the Adirondack Central School District Board of Education, and the Adirondack Central School District. Her claims included violations of federal and state laws related to free speech retaliation, substantive due process, equal protection, the ADA, New York Civil Service Law § 75-b, defamation, property interests, and intentional infliction of emotional distress. Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The court granted the motion to dismiss for the ADA claim (due to untimeliness), defamation, damage to property interests and professional reputation, and intentional infliction of emotional distress. However, the court denied the motion to dismiss for the free speech retaliation, substantive due process, equal protection, and New York Civil Service Law claims, allowing these to proceed.

First Amendment RetaliationDue ProcessEqual ProtectionAmericans with Disabilities ActCivil Service LawEmployment DiscriminationPublic Employee RightsFreedom of SpeechMedical ConfidentialityMotion to Dismiss
References
38
Case No. MISSING
Regular Panel Decision

Burns Jackson Miller Summit & Spitzer v. Lindner

This case concerns two New York City law firms, Burns Jackson Miller Summit & Spitzer and Jackson, Lewis, Schnitzler and Krupman, seeking damages from various transit unions and their officers following the April 1980 transit strike. The plaintiffs alleged several common-law causes of action, including prima facie tort and public nuisance, claiming economic losses due to the unlawful strike. The Court of Appeals affirmed the Appellate Division's dismissal of the complaints. It ruled that while the Taylor Law does not prevent private damage actions, it also does not create a new statutory right to sue. Ultimately, the court concluded that the specific common-law claims were either not recognized under New York law or were insufficiently pleaded.

Public Employee StrikeTaylor LawPrivate Right of ActionPrima Facie TortPublic NuisanceIntentional Interference with BusinessThird-Party BeneficiaryUnion LiabilityCommon-Law RemediesLegislative Intent
References
66
Case No. MISSING
Regular Panel Decision

Laverack & Haines, Inc. v. New York State Division of Human Rights

This case concerns an age discrimination complaint filed by employee George Burns against his former employer, Laverack & Haines, Inc., following the elimination of his job during company downsizing. The State Division of Human Rights (SDHR) and the Appellate Division initially ruled in favor of Burns. However, the New York Court of Appeals reversed, finding that while Burns established a prima facie case of age discrimination, the employer successfully rebutted it by demonstrating that the termination was due to severe economic downturns and the elimination of the Claims Manager position across all branch offices. The Court emphasized that an employer is not legally obligated to create new positions or displace other employees to retain a terminated employee due to economic restructuring. Consequently, the Court granted the employer's petition, annulled the SDHR determination, and dismissed Burns's complaint.

Age DiscriminationEmployment TerminationCompany DownsizingEconomic ConditionsPrima Facie CaseEmployer RebuttalNon-discriminatory ReasonHuman Rights LawAppellate ReviewNew York Court of Appeals
References
9
Case No. MISSING
Regular Panel Decision
Nov 06, 1997

B-S Industrial Contractors, Inc. v. Burns Bros. Contractors, Inc.

Plaintiff, a heavy construction business, alleged that defendant Burns Brothers Contractors, Inc., a material supplier, and defendant Robert E. Anderson, a former key project estimator for plaintiff, conspired to interfere with plaintiff's contracts and misappropriated confidential information. Plaintiff contended that Anderson, upon joining Burns, used its confidential bidding information to secure contracts with Champion Paper Company, Inc., which were originally intended for plaintiff. The Supreme Court initially granted a temporary restraining order and an order of seizure for files taken by Anderson, but later vacated the restraining order. Plaintiff moved to amend its complaint to add a cause of action for tortious interference with prospective business relations, which the Supreme Court granted, while denying Burns' cross-motion to dismiss. The appellate court affirmed the Supreme Court's order, concluding that plaintiff's allegations of misrepresentations and misappropriation of confidential information to gain a competitive advantage were sufficient to survive a motion to dismiss.

Tortious InterferenceConfidential InformationTrade SecretsCompetitive AdvantageMotion to DismissLeave to Amend ComplaintAppellate ReviewCommercial DisputeEmployment LawUnfair Competition
References
6
Case No. ADJ7160893
Regular
Feb 18, 2014

Kenneth Burns vs. Linkus Enterprise, Travelers Property Casualty Company of America

The applicant, Kenneth Burns, sought reconsideration of an order dismissing his workers' compensation case due to his failure to appear at trial. Burns contended he was unable to attend due to hardship. The Workers' Compensation Appeals Board (WCAB) granted reconsideration on its own motion, adopting the WCJ's recommendation. The WCAB rescinded the dismissal order and returned the matter to the WCJ for further appropriate proceedings.

WORKERS' COMPENSATION APPEALS BOARDReconsiderationOrder Dismissing CaseFailure to AppearTrialHardshipReport and RecommendationLabor Code section 5900(b)RescindDecision After Reconsideration
References
0
Case No. 2016 NY Slip Op 02787 [138 AD3d 797]
Regular Panel Decision
Apr 13, 2016

Mileski v. MSC Indus. Direct Co., Inc.

Drena Mileski, as administratrix of Ronald P. Mileski's estate, initiated a wrongful death action following Ronald's death from injuries sustained operating a lathe machine. The plaintiff sought to amend the complaint to include Burns Real Estate, LLC, Nijon Tool Co., Inc., Island Machine Supply Corp., and John Raymond Burns as additional defendants, relying on the relation-back doctrine. The Supreme Court granted this amendment. However, the Appellate Division reversed, ruling that the relation-back doctrine was inapplicable. The court reasoned that if the new defendants were united in interest with the employer, they would share the employer's immunity under the Workers' Compensation Law, rendering the claims time-barred.

Wrongful DeathLathe AccidentRelation-Back DoctrineStatute of LimitationsAmended ComplaintVicarious LiabilityWorkers' Compensation ImmunityAppellate ProcedureTimeliness of AppealUnity of Interest
References
12
Case No. MISSING
Regular Panel Decision

Leemon v. Burns

Plaintiff Ira Leemon initiated a lawsuit against CCF Capital Group, Inc., Steven Nocito, Franco Nocito, Gerry Burns a/k/a John Henry, Pines International Resorts, Inc., and Waylon McMullen, alleging securities fraud under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, alongside a breach of contract claim. The defendants moved to dismiss the complaint, arguing, among other things, a failure to plead fraud with particularity. The U.S. Magistrate Judge, Peck, determined that the promissory note at the heart of the dispute qualified as a security under the 'family resemblance' test. However, the court found the plaintiff's complaint deficient in establishing a 'strong inference of fraudulent intent' (scienter) with the required particularity under Rule 9(b) and the Private Securities Litigation Reform Act. Consequently, the securities fraud claim was dismissed without prejudice, and the court declined supplemental jurisdiction over the state-law breach of contract claim, granting the plaintiff leave to amend the complaint.

Securities FraudMotion to DismissScienter Pleading StandardPromissory Note as SecurityInvestment FraudPrivate Securities Litigation Reform ActFederal Rules of Civil Procedure Rule 9(b)SEC Rule 10b-5Family Resemblance TestBreach of Contract Claim
References
75
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