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

Case No. 2020 NY Slip Op 00935 [180 AD3d 1331]
Regular Panel Decision
Feb 07, 2020

Matter of Emma D. (Kelly v. D.)

This case involves two appeals concerning Emma D. In Appeal No. 1, the Ontario County Department of Social Services (DSS) initiated a neglect proceeding against the mother, Kelly V.(D.). The mother's motion to change venue to Monroe County was denied due to her refusal to provide her actual residence. In Appeal No. 2, the grandmother, Margarita D., commenced a custody proceeding against the mother. Custody was granted to the grandmother, supported by findings of extraordinary circumstances including the mother's neglect, unstable living situation, mental health issues, and failure to address the child's special needs. The Appellate Division, Fourth Department, unanimously affirmed both orders, including the supervised visitation arrangement between the mother and grandmother.

Child NeglectCustody DisputeFamily Court ActVenue ChangeExtraordinary CircumstancesSupervised VisitationParental RightsChild WelfareAppellate ReviewParental Fitness
References
9
Case No. MISSING
Regular Panel Decision

Nagel v. D & R REALTY CORP.

Bruce Nagel, an elevator safety inspector, suffered injuries after slipping on oil during a two-year safety test. He and his wife sued D & R Realty Corp., the building owner, alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), particularly Industrial Code § 23-1.7 (d). The claims under §§ 200 and 240 (1) were withdrawn. Both the Supreme Court and the Appellate Division granted summary judgment to the defendant, ruling Nagel's work was routine maintenance, not construction, demolition, or excavation under Labor Law § 241 (6). The Court of Appeals affirmed, holding that Labor Law § 241 (6) protections do not extend to maintenance work outside the construction context.

Elevator accidentLabor LawSection 241(6)Routine maintenanceConstruction workDemolition workExcavation workIndustrial CodeSafety inspectionBuilding owner liability
References
6
Case No. ADJ7535016, ADJ7536297, ADJ8099855
Regular
Sep 05, 2013

DAVID MURILLO-RAMOS vs. NATIONAL RETAIL TRANSPORTATION, TRAVELERS INSURANCE

This Workers' Compensation Appeals Board order dismisses the Applicant's Petition for Reconsideration. The dismissal is based on two procedural defects: the petition was not verified as required by Labor Code section 5902, and there was no proof of proper service under Cal. Code Regs., tit. 8, § 10565(d). The Board cites prior case law supporting dismissal for these types of violations. Consequently, the Petition for Reconsideration filed by David Murillo-Ramos against National Retail Transportation and Travelers Insurance is formally rejected.

Petition for ReconsiderationDismissalVerificationLabor Code section 5902Proof of ServiceCal. Code Regs.tit. 8§ 10565(d)WCJ ReportWorkers' Compensation Appeals Board
References
2
Case No. 2016 NY Slip Op 08114
Regular Panel Decision
Dec 01, 2016

Matter of Kent D. (Rachel D.)

Petitioner Kent D. appealed an order from Family Court, New York County, which denied his motion for a forensic evaluation and granted the cross motion to dismiss his petition for visitation with his child. The background reveals that in February 2008, Kent D. stabbed Rachel D., the mother, seven times in front of their child, leading to his conviction for assault and child endangerment and an 11-year prison sentence. A 19-year order of protection was issued, prohibiting contact with the child. The Family Court had previously awarded custody to the mother, and a 2012 divorce judgment affirmed no visitation rights for Kent D. The Appellate Division affirmed the Family Court's decision, finding that Kent D. failed to make an evidentiary showing of changed circumstances required for a visitation hearing, and his claims of completing an anger management program were unsubstantiated. The court also noted the child's continuing symptoms of post-traumatic stress disorder and desire not to see him.

Visitation RightsChild CustodyOrder of ProtectionDomestic ViolenceAssault ConvictionChanged CircumstancesForensic EvaluationAppellate ReviewFamily LawPost-Traumatic Stress Disorder
References
2
Case No. ADJ6699348
Regular
Mar 17, 2016

KANON MONKIEWICZ vs. RM STORE FIXTURES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) issued a Notice of Intention to find that Labor Code section 4903.8(a) does not preclude awards to lien claimants Rx Funding Solutions, LLC and PharmaFinance, LLC. This is because the 2014 amendments to section 4903.8(a)(2) specify that it does not apply to assignments completed prior to January 1, 2013. Both of the lien claimants' assignments were made before this date, thus exempting them from the preclusion. The WCAB is amending its previous order and returning the case to the trial level for further proceedings on the merits of the liens.

Labor Code 4903.8Lien claimantsAssignment of receivablesCessation of businessPharmacy lienMedical lienSB 863AB 2732Prospective vs. retrospective applicationWCAB rules
References
10
Case No. MISSING
Regular Panel Decision
Mar 26, 1991

Square D Co. v. Schneider S.A.

Plaintiff Square D Company alleged that defendant Schneider, S.A. and its affiliates were engaged in an illegal plan to acquire Square D through a hostile tender offer and proxy fight. Square D filed an Amended and Supplemental Complaint, claiming violations of Sections 7 and 8 of the Clayton Act and Section 1 of the Sherman Act. Defendants moved to dismiss these counts for failure to state a claim upon which relief can be granted, arguing lack of standing and flaws in the plaintiff's legal theories. The Court denied the defendants' motion in its entirety, affirming Square D's standing to bring the antitrust claims and accepting the 'agency theory' for Section 8 liability at this preliminary stage. The Court also denied the defendants' application for certification under 28 U.S.C. § 1292(b), citing the expedited schedule of the case and the potential for hindering resolution.

Antitrust LawClayton ActSherman ActHostile TakeoverProxy FightCorporate AcquisitionMotion to DismissAntitrust InjuryStandingInterlocking Directorates
References
11
Case No. 2024 NY Slip Op 02166 [226 AD3d 960]
Regular Panel Decision
Apr 24, 2024

Chuqui v. Cong. Ahavas Tzookah V'Chesed, Inc.

Jose D. Chuqui, an employee, was injured while operating a nail gun during a remodeling project, alleging violations of Labor Law §§ 200 and 241 (6), specifically Industrial Code (12 NYCRR) § 23-1.8 (a) concerning eye protection. The Supreme Court initially granted summary judgment on liability under Labor Law § 241 (6) against Cong. Ahavas Tzookah V'Chesed, Inc., the owner of the premises. However, the Appellate Division, Second Department, reversed this decision. The Appellate Division found that the plaintiff failed to establish a prima facie case, specifically by not eliminating a triable issue of fact as to whether his work at the time of the accident required eye protection as per Industrial Code (12 NYCRR) § 23-1.8 (a). Consequently, the plaintiff's motion for summary judgment on liability against Cong. Ahavas Tzookah V'Chesed, Inc. was denied.

Personal InjurySummary JudgmentAppellate ReviewLabor LawIndustrial Code ViolationEye ProtectionConstruction AccidentWorker SafetyTriable Issue of FactEmployer Liability
References
8
Case No. MISSING
Regular Panel Decision
Nov 25, 1986

In re Moises D.

This appeal arises from an amended order of the Family Court, Kings County, which dismissed petitions alleging that Moisés D. and Noami D. were neglected children. The appellate court reversed the lower court's decision, adjudicating Moisés D. and Noami D. as neglected children and remitting the matter for a dispositional hearing. The evidence detailed the father's history of paranoid schizophrenia and past instances of severe abuse and neglect towards his other children, including physical violence and a dangerous incident with an autistic son. The mother was found to have failed to protect the children and demonstrated a faulty understanding of parental duties, leading the court to conclude a substantial risk of harm to Moisés D. and Noami D. without supervision. The decision emphasized the necessity of a dispositional hearing to determine the children's well-being and maintain family integrity.

Child NeglectFamily Court ActParental RightsMental IllnessParanoid SchizophreniaChild AbuseAppellate ReviewDispositional HearingRisk AssessmentParental Fitness
References
4
Case No. MISSING
Regular Panel Decision

Howell v. Karl Koch Erecting Corp.

Jeffrey Howell, a hoisting machine operator, slipped and fell on a crane deck, alleging injuries due to oil and prior complaints about leaks. He brought an action under Labor Law § 241 (6), supported by industrial regulations 12 NYCRR 23-1.7 (d) and 23-8.1 (b) (1), (2), and (5). The court deemed 12 NYCRR 23-8.1 (b) (1) (mandatory monthly crane inspection) and 12 NYCRR 23-1.7 (d) (slipping hazards relief) specific enough for a § 241 (6) claim. The defendant, Karl Koch Erecting Corp., moved for summary judgment. The court denied the motion, ruling that the crane deck was an 'elevated working surface' under 12 NYCRR 23-1.7 (d) and that triable issues of fact remained regarding compliance with the regulations.

Summary JudgmentLabor LawWorkplace SafetySlip and FallCrane AccidentIndustrial CodeSubcontractor LiabilityGeneral ContractorConstruction SiteStatutory Interpretation
References
13
Case No. MISSING
Regular Panel Decision

Klein v. A.D. Development Ltd.

Frank Klein's motion to consolidate action numbers 1 and 2 was granted without opposition. Defendant Kala Zaveri, also president of A.D. Development Ltd., filed a cross-motion for summary judgment in the consolidated action, arguing she was exempt from liability under Labor Law § 240 (1) as an owner of a single-family dwelling. However, the court denied her motion, finding that the dwelling was part of a commercial enterprise intended for resale, not personal use. The court reasoned that the homeowner's exemption did not apply to commercial developers, emphasizing the statute's intent to place responsibility for worker safety on those best suited to provide such safeguards.

Labor Law § 240 (1)Homeowner ExemptionCommercial EnterpriseSummary JudgmentStatutory InterpretationWorker SafetyConsolidated ActionDeveloper LiabilityThird-Party Action
References
3
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