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

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
May 08, 2007

Canal Carting, Inc. v. City of New York Business Integrity Commission

Petitioners Canal Carting, Inc. and Canal Sanitation, Inc., long-standing private sanitation businesses, challenged the Business Integrity Commission's (BIC) denial of their license renewals. The BIC cited Canal's knowing failure to provide required documentation, inability to demonstrate eligibility, and two violations for illegal dumping and operating an illegal transfer station. Canal argued the findings were arbitrary, capricious, and unprecedented, insisting their financial issues were unrelated to organized crime, which Local Law 42 (governing BIC) aimed to combat. The court found no due process violation regarding a formal hearing but concluded that the BIC's denial, effectively closing Canal's 50-year business for what amounted to poor business management, was arbitrary, unduly harsh, and shocking to one's sense of fairness. Consequently, the court granted the petition, annulled the BIC's denial, and remanded the case for reconsideration.

License RenewalAdministrative LawArticle 78 ProceedingBusiness Integrity CommissionTrade Waste IndustryDue ProcessArbitrary and CapriciousJudicial ReviewLocal Law 42Financial Responsibility
References
6
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. WCK 0068998
Regular
Jan 22, 2008

LINDA FONTENOT vs. BARRETT BUSINESS SERVICES INC., PINNACLE RISK MANAGEMENT SERVICES

The Workers' Compensation Appeals Board (WCAB) rescinded sanctions imposed against Barrett Business Services Inc. (represented by Pinnacle Risk Management Services) and its adjustor, Chamber Medical Collections, Inc. (CMC), for failing to appear at a hearing. The WCAB found that CMC provided a reasonable excuse for its non-appearance, supported by a doctor's note, and deemed the sanctions disproportionate. The matter was returned to the trial level for further proceedings on other sanctions and the underlying lien claim.

Workers Compensation Appeals BoardReconsiderationSanction OrdersLien ClaimantFailure to AppearWCJPetition for ReconsiderationTimelinessReasonable ExcuseDoctor's Statement
References
0
Case No. MISSING
Regular Panel Decision

Stilsing Electric, Inc. v. Joyce

Plaintiff, an electrical contracting corporation, initiated a defamation action against the defendant, a business manager for IBEW Local Union No. 724. The defendant had investigated the plaintiff's apprenticeship program, believing it was non-compliant with state labor laws and regulations. He filed complaints with the State Department of Labor, leading to an administrative hearing. Although an initial review found the plaintiff's program compliant, the defendant's persistence led to a formal hearing where the Commissioner of Labor ultimately dismissed the defendant's complaint. The plaintiff then sued for defamation, alleging that the defendant's written and oral statements during this process led to loss of contracts with Albany County. Special Term denied the defendant's motion for summary judgment, ruling that he was, at best, entitled to a qualified privilege and that issues of fact regarding malice existed. On appeal, the court determined that the administrative proceeding was quasi-judicial, based on its adversarial nature, reliance on law and facts, and susceptibility to judicial review under CPLR article 78. Consequently, the court concluded that the defendant's communications were protected by an absolute privilege, thereby reversing Special Term's orders and dismissing the plaintiff's complaint.

DefamationAbsolute PrivilegeQualified PrivilegeAdministrative LawQuasi-Judicial ProceedingsLabor Law ComplianceApprenticeship ProgramsFreedom of ExpressionPublic Policy ArgumentsSummary Judgment Motion
References
11
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

Western Building Restoration Co. v. Lovell Safety Management Co.

Plaintiff, a construction company, purchased a workers' compensation policy and became a member of a safety group managed by the defendant. Plaintiff obtained a certificate of workers' compensation insurance through defendant for a Massachusetts project, but the policy stated coverage only for New York operations. After a Massachusetts employee was injured, defendant refused coverage, leading plaintiff to sue for breach of contract, negligence, estoppel, negligent misrepresentation, fraud, and General Business Law § 349. The Supreme Court partially denied defendant's summary judgment motion. The appellate court reversed, finding no contractual relationship or duty owed by defendant as a safety group manager, and dismissed all claims, concluding that the policy unambiguously limited coverage to New York workplaces, and plaintiff failed to demonstrate broad consumer impact for its General Business Law claim.

Insurance Policy LimitsExtraterritorial CoverageSummary Judgment ReviewContractual DutyTort LiabilityReliance DoctrineInsurance BrokerageStatutory InterpretationBusiness Practices LitigationAppellate Procedure
References
21
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
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