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

Case No. MISSING
Regular Panel Decision

Merrill Lynch Realty Associates, Inc. v. Burr

Merrill Lynch Realty Carll Burr, Inc. (MLRCB) and Merrill Lynch Realty Associates, Inc. (MLRA) sued Carll S. Burr III and other defendants over the use of the 'Burr' name in real estate. The dispute originated from a 1980 acquisition agreement and a subsequent employment contract with restrictive covenants. A previous settlement in 1984 also restricted Carll S. Burr III's use of the name. After MLRCB ceased using the 'Carll Burr' name, Carll S. Burr III established 'Carll Burr Realty'. The plaintiffs sought specific performance of the 1984 stipulation, damages, and a permanent injunction. The appellate court found that the lower court improvidently granted a preliminary injunction, citing sharply disputed facts regarding an alleged oral agreement to modify the contract and the plaintiffs' potential abandonment of the 'Burr' name. Additionally, the plaintiffs' sale of their real estate business undermined claims of irreparable injury, making preliminary injunctive relief unwarranted.

Preliminary InjunctionRestrictive CovenantsNon-compete ClauseOral ModificationContract DisputeTrade NameBusiness SaleIrreparable HarmBalancing of EquitiesDisputed Facts
References
8
Case No. MISSING
Regular Panel Decision

John Schepanski Roofing & Gutters v. Roberts

The petitioners, John Schepanski Roofing & Gutters (Schepanski) and Prestige Roofing & Siding Co. (Prestige), sought judicial review of an order from the Commissioner of Labor of the State of New York, dated November 13, 1986. The original order found Schepanski willfully failed to pay prevailing wages and supplements to 19 employees during a roofing project at Suffolk County public schools, resulting in $282,240.46 in underpayments, and assessed a civil penalty of $35,000. Prestige was also held liable for its subcontractor's (Schepanski's) failure. The court granted the petitions and annulled the Commissioner's order, remitting the matter for further proceedings. While acknowledging substantial evidence for willful non-payment and improper record-keeping, the court determined that the respondent's method for calculating underpaid wages and supplements lacked a rational basis. Specifically, the respondent failed to credit Schepanski for some payments made, used an incorrect last day of work, and made an irrational inference about the number of workers present. As a result, the assessed civil penalty must also be reconsidered.

Prevailing WageWage UnderpaymentLabor Law ViolationCivil PenaltyJudicial ReviewArticle 78 ProceedingSubcontractor LiabilityRecord KeepingRational BasisRemittal
References
6
Case No. 2019 NY Slip Op 06327 [175 AD3d 1062]
Regular Panel Decision
Aug 22, 2019

Pelonero v. Sturm Roofing, LLC

Plaintiff Salvatore Pelonero commenced a Labor Law and common-law negligence action against Sturm Roofing, LLC, seeking damages for injuries from a fall at a roofing site. The Supreme Court granted Pelonero's motion for partial summary judgment on the issue of liability. The Appellate Division, Fourth Department, unanimously reversed this order, denying the plaintiff's motion. The court found that Pelonero failed to eliminate all triable issues of fact regarding whether he was a worker and whether Sturm Roofing, LLC was an owner or contractor liable under Labor Law § 240 (1). Conflicting statements about how the accident occurred also raised an issue of fact. Furthermore, the plaintiff failed to meet his burden on the common-law negligence and Labor Law § 200 claims, and the Labor Law § 241 (6) claim lacked the necessary specific Industrial Code violations.

Labor LawSummary JudgmentAppellate ReviewConstruction AccidentRoofing WorkCredibility IssueProximate CauseSafety DevicesIndustrial CodeCommon-Law Negligence
References
21
Case No. MISSING
Regular Panel Decision
Oct 05, 2006

Burr Ex Rel. Burr v. Toyota Motor Credit Co.

Howard and Daisy Burr, New York residents, sued Liliana Serrano (New Jersey resident) and Toyota Motor Credit Co. (TMCC) for injuries Daisy sustained in a car accident. The case, initially filed in New York Supreme Court, was removed to federal court by TMCC on grounds of diversity jurisdiction. The Burrs moved to remand, arguing untimely removal and lack of Serrano’s consent, and that the amount in controversy was not met. The court found that while the amount in controversy requirement was likely met due to Daisy's "serious and severe permanent personal injuries", TMCC's removal petition was untimely. TMCC either waived service by filing a joint Answer on August 10, 2006, or was served on August 14, 2006, making its September 15, 2006 removal untimely. Additionally, Serrano's written consent was not filed until October 2, 2006, further rendering the removal petition defective. Therefore, the Plaintiffs’ motion to remand was granted, and the case was sent back to the New York State Supreme Court, New York County.

RemovalRemandDiversity JurisdictionTimelinessConsentAmount in ControversyPersonal InjuryCar AccidentNegligenceFederal Rules of Civil Procedure
References
18
Case No. MISSING
Regular Panel Decision

Striegel v. Hillcrest Heights Development Corp.

Plaintiff Robert Striegel sought partial summary judgment against Hillcrest Heights Development Corporation under Labor Law §§ 240(1) and 241(6) for injuries sustained from a fall while working on a sloped roof. Striegel, an employee of Sahlem's Roofing and Siding, slipped on a frost-covered sub-roof, fell, and slid down the roof, alleging that Hillcrest, as owner and general contractor, failed to provide safety devices. Defendants argued that the injury was from lifting or that the fall was onto the roof surface, not from an elevated height, citing White v Sperry Supply & Warehouse. The court distinguished White, finding that the sloped roof in this case made the fall directly related to gravity, thus falling within the purview of Labor Law § 240(1). Consequently, the court granted Striegel partial summary judgment on liability and also granted Hillcrest a conditional judgment for common-law indemnification against Sahlem’s, finding no active negligence on Hillcrest's part.

Construction AccidentSummary JudgmentLiabilityIndemnificationLabor LawElevated Work SiteGravity-Related HazardRoofingFall ProtectionPersonal Injury
References
4
Case No. MISSING
Regular Panel Decision

Porter v. THOMPSON ROOFING AND SHEET METAL CO.

Petitioner United Union of Roofers, Waterproofers and Allied Workers, Local Union No. 74 and Donald Porter sought to confirm an arbitration award against Thompson Roofing and Sheet Metal Company, Inc. under Section 301 of the Labor Management Relations Act (LMRA). Thompson Roofing opposed the motion, arguing the arbitration process was flawed and jurisdiction was lacking. However, Thompson Roofing failed to move to vacate the arbitration award within the 90-day statute of limitations as prescribed by New York CPLR § 7511(a). Citing precedent from the Second Circuit (Local 802), the court ruled that the failure to challenge an arbitration award within the statutory period precludes raising affirmative defenses in a subsequent action to enforce the award. Consequently, the court granted the Union's motion for summary judgment and denied Thompson Roofing's motion, thereby confirming the arbitration award.

Arbitration AwardLabor LawSummary JudgmentStatute of LimitationsLMRA Section 301Affirmative DefensesWaiverCollective Bargaining AgreementFederal Court JurisdictionConfirmation of Award
References
4
Case No. 2018 NY Slip Op 03199
Regular Panel Decision
May 03, 2018

Wellington v. Christa Constr. LLC

Plaintiff Daniel Wellington, a masonry subcontractor employee, was injured when a tire rim fell from a roof, striking him on the head. The tire rim, placed by defendant Tower Roofing Company, Inc. for a safety barrier, fell due to windy conditions. Wellington and his spouse sued Tower Roofing and Christa Construction LLC (general contractor) for negligence and Labor Law violations. The Appellate Division determined that Tower Roofing was liable under Labor Law § 240 (1) for failing to secure the tire rim, which was considered a falling object that required securing. The court modified the lower court's order to grant plaintiffs' motion for partial summary judgment on this issue and affirmed the denial of summary judgment for contractual indemnification due to unresolved factual questions regarding negligence.

Construction AccidentLabor LawFalling ObjectSubcontractor LiabilityGeneral Contractor LiabilitySummary JudgmentAppellate ReviewContractual IndemnificationNegligenceElevation Hazard
References
30
Case No. ADJ9001538
Regular
Sep 14, 2018

, PEDRO MONTELONGO vs. MC ROOFING CORPORATION, STATE COMPENSATION INSURANCE FUND

This case involves an applicant seeking reconsideration of a WCJ's decision denying sanctions and attorneys' fees against defendants MC Roofing Corporation and its insurer, SCIF. The applicant alleged bad faith conduct by MC Roofing's owner, Manuel Cuevas, and sought sanctions against him and SCIF, as well as attorney's fees from retroactive temporary total disability benefits. The Appeals Board granted reconsideration to further investigate whether Cuevas is a defendant, whether his alleged misconduct can be imputed to MC Roofing, and if sanctions are appropriate. The matter is returned to the trial level for further proceedings on the issue of sanctions against Cuevas.

Workers' Compensation Appeals BoardPedro MontelongoMC Roofing CorporationState Compensation Insurance FundPetition for ReconsiderationSupplemental Findings of FactSanctionsLabor Code Section 5813Bad Faith ConductAttorney Fees
References
3
Case No. MISSING
Regular Panel Decision

Sheet Metal Division of Capitol District Sheet Metal, Roofing & Air Conditioning Contractors Ass'n v. Local Union 38 of the Sheet Metal Workers International Ass'n

The plaintiffs, a coalition of sheet metal contractor associations, filed a lawsuit against Local Union 38 and a related employer association, alleging violations of federal and state antitrust and labor laws. The core of the dispute was a collective bargaining agreement provision mandating that all sheet metal fabrication be performed within Local 38's geographical jurisdiction, which plaintiffs argued constituted an illegal trade barrier. Defendants countered that the provision was a lawful work preservation clause, protected under labor law exemptions. The court ultimately ruled that the challenged clause was neither a valid work preservation measure nor exempt from antitrust scrutiny. Consequently, the court granted the plaintiffs' motion for a declaratory judgment, declaring the provision void and unenforceable due to its violation of both the National Labor Relations Act and the Sherman Antitrust Act.

AntitrustLabor LawCollective Bargaining AgreementWork Preservation ClauseSherman ActNLRADeclaratory JudgmentTrade BarrierGeographic JurisdictionSecondary Boycott
References
31
Case No. 2018 NY Slip Op 04897
Regular Panel Decision
Jun 29, 2018

Bund v. Higgins

Plaintiff Ronald Bund, an independent contractor, sustained injuries after falling from a roof while working for Raymond M. Devore, who was hired by defendants David P. Higgins and Linda M. Higgins to install a roof on their single-family home. Defendants moved for summary judgment, arguing they were exempt from Labor Law §§ 240(1) and 241(6) liability as one-family dwelling owners who did not direct or control the work. The Appellate Division agreed, finding that defendants, despite acting as general contractors by obtaining permits and purchasing materials, did not supervise or control the method and manner of plaintiff's work, as evidenced by their non-presence during the roofing work and Devore's responsibility for worker safety. The court also concluded that defendants were not liable under common-law negligence or Labor Law § 200 because the alleged dangerous condition arose from the contractor's methods, and defendants exercised no supervisory control. Therefore, the Supreme Court's order denying summary judgment was reversed, and the complaint against David P. Higgins and Linda M. Higgins was dismissed.

Labor Law ExemptionOne-Family Dwelling OwnersSummary JudgmentIndependent Contractor LiabilitySupervisory ControlCommon-Law NegligenceRoofing AccidentConstruction InjuryOwner LiabilityAppellate Review
References
10
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