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

Case No. 2022 NY Slip Op 02942 [205 AD3d 410]
Regular Panel Decision
May 03, 2022

Matter of Casino Towing Serv., Inc. v. New York City Dept. of Consumer & Worker Protection

The Appellate Division, First Department, affirmed a Supreme Court judgment that denied a petition by Casino Towing Service, Inc. to annul a determination by the New York City Department of Consumer and Worker Protection (DCWP). DCWP had suspended Casino Towing's tow truck license for three months due to violations of insurance coverage rules, specifically for modifying its policy to reduce coverage below mandated amounts and failing to report the change within 10 days. The Appellate Division found DCWP's determination to be rationally supported by the record and not arbitrary and capricious. The court further held that Casino Towing did not have a constitutional due process right to a hearing, as there is no property interest in the renewal of an expired license and adequate notice and opportunity for written submissions were provided. The penalty was also deemed not to shock the conscience.

Tow Truck License SuspensionInsurance Coverage ViolationsAdministrative Code ViolationsDue Process RightsLicense RenewalAppellate ReviewArbitrary and CapriciousPenalty Shock the ConscienceCPLR Article 78DCWP Determination
References
10
Case No. MISSING
Regular Panel Decision
Jan 18, 1990

Del Casino v. City of New Rochelle

This case details an appeal by plaintiffs, including police officer Anthony Del Casino, from an order of the Supreme Court, Westchester County. The original order had granted the City of New Rochelle's motion for summary judgment and denied the plaintiffs' cross-motion to dismiss affirmative defenses. Del Casino alleged negligence by the City in failing to properly maintain a footbridge, leading to personal injuries, and cited violations of the City Charter and Highway Law §§ 230 and 251. The Appellate Court modified the order by denying the defendant's summary judgment motion and reinstating the complaint, finding a valid cause of action under General Municipal Law § 205-e. Additionally, the court granted the plaintiffs' cross-motion to dismiss the City's fourth affirmative defense, which was deemed inapplicable to a statutory cause of action under General Municipal Law § 205-e.

Personal Injury DamagesNegligence ActionSummary Judgment MotionAffirmative Defenses DismissalPolice Officer InjuryMunicipal NegligenceFootbridge MaintenanceGeneral Municipal Law § 205-eHighway Law ViolationsComplaint Reinstatement
References
2
Case No. 2021 NY Slip Op 06406
Regular Panel Decision
Nov 18, 2021

Matter of Gabel (Bankers Life & Cas. Co.--Commissioner of Labor)

Claimant Christopher M. Gabel, an insurance broker, sought unemployment insurance benefits after his agreement with Bankers Life and Casualty Company (BLC) was terminated. While an Administrative Law Judge initially denied benefits, the Unemployment Insurance Appeal Board reversed, ruling that BLC was liable for contributions. The Board found that Gabel's services were not statutorily exempted under Labor Law § 511 (21) because his actual work was inconsistent with the contract's statutory provisions, and BLC maintained sufficient supervision and control to constitute an employment relationship. BLC appealed, contending its written agreement met the Labor Law requirements and that Gabel was an independent contractor. The Appellate Division, Third Department, affirmed the Board's decision, stating that the actual performance of services must conform to the statutory provisions, not just their inclusion in the contract. The court also found substantial evidence that BLC exercised significant control over Gabel's work, thus establishing an employment relationship.

Unemployment Insurance BenefitsIndependent ContractorEmployment RelationshipInsurance AgentLabor Law § 511 (21)Unemployment Insurance Appeal BoardAppellate ReviewStatutory InterpretationCommon-Law TestEmployer Control
References
11
Case No. 2021 NY Slip Op 06405 [199 AD3d 1196]
Regular Panel Decision
Nov 18, 2021

Matter of Paratore (Bankers Life & Cas. Co.--Commissioner of Labor)

Claimant Paul Paratore, an insurance broker and agent, filed for unemployment insurance benefits after his relationship with Bankers Life and Casualty Company (BLC) ended. The Department of Labor determined him eligible, a decision affirmed by the Unemployment Insurance Appeal Board, which found his services were not statutorily exempt and that BLC exercised sufficient control to establish an employment relationship under unemployment insurance law. BLC appealed, arguing its agreement satisfied Labor Law § 511 (21) and challenging the employment relationship finding. The Appellate Division, Third Department, affirmed the Board's decisions, agreeing that the statutory requirements were not met and that substantial evidence supported the finding of an employment relationship between BLC and the claimant.

Unemployment InsuranceEmployment StatusIndependent ContractorInsurance IndustryLabor Law ComplianceAppellate ReviewControl TestStatutory InterpretationAgent AgreementBenefits Eligibility
References
10
Case No. ADJ4413699 (SDO 0272634)
Regular
Jul 26, 2018

ROMINA FATURECHI vs. JOSEPH CAPPS, UNINSURED EMPLOYERS BENEFITS TRUST FUND, OCEAN'S ELEVEN CASINO, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for SUPERIOR NATIONAL INSURANCE COMPANY

The Workers' Compensation Appeals Board overturned a prior decision, finding that the applicant was jointly employed by Joseph Capps and Ocean's Eleven Casino. This determination was based on evidence that the Casino exercised control over the applicant's work, including directing when games started and stopped, providing meals, and having the ability to influence her hiring and termination. The Court emphasized that the legality of the Casino employing the applicant was not the decisive factor. Therefore, both Capps and the Casino are considered dual employers for the purposes of workers' compensation.

Dual employmentSpecial employment relationshipJoint employmentControl of employee activitiesCasino bankerPropositional playerUninsured employerCalifornia Insurance Guarantee AssociationUninsured Employers Benefits Trust FundBorello test
References
16
Case No. MISSING
Regular Panel Decision

Myers v. Seneca Niagara Casino

Rachel Myers sued Seneca Niagara Casino, alleging violations of the Family and Medical Leave Act (FMLA) after her termination due to illness. The Casino, an arm of the Seneca Nation of Indians, moved to dismiss based on tribal sovereign immunity, arguing FMLA does not abrogate this immunity and the Nation had not waived it. Plaintiff countered that the Casino's employee manual and a Nation-State Gaming Compact constituted waiver. The Court found no express abrogation by Congress and no clear, unequivocal waiver by the Seneca Nation, distinguishing the cited Compact's limited scope. Consequently, the District Court granted Defendant's motion, dismissing the case for lack of subject matter jurisdiction, also ruling that equitable relief was unavailable.

FMLATribal Sovereign ImmunitySubject Matter JurisdictionFederal Rule of Civil Procedure 12(b)(1)Second Circuit PrecedentIndian Nations LawWaiver of ImmunityEquitable ReliefEmployment LawGaming Compacts
References
13
Case No. MISSING
Regular Panel Decision

Kenosha Beef International, Inc. v. McCook Boxed Beef Corp. (In re McCook Boxed Beef Corp.)

Bankers Trust Company applied for an injunction to prevent Kenosha Beef International from pursuing a New York State Supreme Court action. Bankers Trust argued that the issues had already been resolved against Kenosha by an examiner appointed in a related Chapter 11 bankruptcy case of McCook Boxed Beef Corp. Kenosha countered that it had not received a full and fair opportunity to litigate the matter. The Bankruptcy Court examined the applicability of res judicata and collateral estoppel, recognizing its power to enjoin state court actions under 28 U.S.C. § 2283. While res judicata was deemed inapplicable, the Court, exercising its discretion, refrained from applying collateral estoppel. Consequently, Bankers Trust's motion for an injunction was denied.

Injunctive ReliefBankruptcy LawRes JudicataCollateral EstoppelAnti-Injunction ActFederal vs. State Court JurisdictionExaminer's ReportFraud AllegationsCreditor DisputeChapter 11 Proceedings
References
11
Case No. ADJ2778456 (RIV 0077428)
Regular
Nov 23, 2010

ANGELLA KEITT vs. AGUA CALIENTE CASINO, TRIBAL FIRST AFFINITY SAN DIEGO

The Appeals Board granted reconsideration and rescinded the prior award because the trial judge prematurely determined the casino, owned by a federally recognized Indian tribe, waived sovereign immunity. The Board needs to first determine if it has subject matter jurisdiction, and the casino must present evidence on this issue at the trial level. The casino improperly attached new evidence to its reconsideration petition. The case is returned to the trial level for further proceedings to properly address the jurisdictional question.

sovereign immunityTribal Gaming Compactsubject matter jurisdictionwaiverdiscovery orderfederally recognized Indian tribereconsiderationrescindedtrial levelAngella Keitt
References
2
Case No. 2023 NY Slip Op 01835 [215 AD3d 414]
Regular Panel Decision
Apr 06, 2023

Bankers Conseco Life Ins. Co. v. Wilmington Trust, N.A.

The Appellate Division, First Department, affirmed an order by the Supreme Court, New York, which denied the defendant's motion to compel documents and serve additional interrogatories. The court found that Indiana's insurance examination privilege protected internal communications sought by the defendant. Additionally, Indiana's professional services privilege was deemed applicable to Washington National as a client, with no waiver despite the production of some nonprivileged communications. The defendant was also not entitled to confidential settlement agreements or pleadings from other cases due to a judge's protective order, and the request for monetary amounts was considered premature. Finally, the denial of additional interrogatories was upheld as overbroad, seeking confidential information, and rendered superfluous by the plaintiffs' damages expert report.

PrivilegeInsurance Examination PrivilegeDiscoveryMotion to CompelIndiana LawProfessional Services PrivilegeConfidentialitySettlement AgreementsInterrogatoriesAppellate Review
References
4
Case No. MISSING
Regular Panel Decision
Aug 07, 1984

Murtaugh v. Bankers Trust Co.

In November 1978, claimant Murtaugh filed a discrimination claim against Bankers Trust Company of Albany, N. A. following her 1977 dismissal, citing Workers’ Compensation Law § 241. The Workers’ Compensation Board affirmed a discrimination finding, which was subsequently upheld by the Appellate Division. An administrative law judge directed Murtaugh's reinstatement and awarded back wages from January 1, 1978, to October 19, 1982, with an offset for unemployment benefits. The Bank appealed this decision, contending the back pay award was unauthorized under Workers’ Compensation Law § 120, arguing Murtaugh failed to accept reemployment or mitigate damages. The court found substantial evidence that no bona fide reemployment offer was made and that the issue of mitigation of damages was not properly raised. Consequently, the court affirmed the Board's decision, upholding Murtaugh's entitlement to back pay.

Workers' Compensation LawDiscriminationBack Pay AwardReinstatementMitigation of DamagesUnemployment BenefitsOffer of ReemploymentAppellate DivisionNew York LawEmployer Liability
References
4
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