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

Case No. 12 Civ. 3763(AJN)
Regular Panel Decision

R.B. v. New York City Department of Education

Plaintiffs R.B. and M.L.B., parents of D.B., brought an action against the New York City Department of Education (DOE) seeking judicial review of an administrative decision. The State Review Officer (SRO) had previously affirmed an Impartial Hearing Officer's (IHO) decision, which found D.B.'s Individualized Education Plan (IEP) sufficient under the Individuals with Disabilities Education Act (IDEA). The parents sought tuition reimbursement for D.B.'s enrollment in a private school, challenging the IEP's procedural and substantive adequacy and the appropriateness of the DOE's assigned school placement. The District Court granted the Defendant's motion for summary judgment and denied the Plaintiffs' motion, concluding that the IEP was both procedurally and substantively adequate and the assigned school appropriate, thereby denying tuition reimbursement.

Education LawIndividuals with Disabilities Education ActFree Appropriate Public EducationIndividualized Education PlanState Review OfficerImpartial Hearing OfficerDue Process ComplaintTuition ReimbursementSummary JudgmentProcedural Adequacy
References
25
Case No. MISSING
Regular Panel Decision

In re the Guardianship of B.

B, a 26-year-old woman with Down's syndrome and mild to moderate retardation, sought a tubal ligation. Her mother and guardian, D.P., petitioned the Supreme Court, Tompkins County, to modify a 1993 order that had prohibited such sterilization without further court review. The court assessed B's capacity to provide informed consent, considering testimonies from her gynecologist, psychiatric social worker, mother, and an independent psychologist. While one expert initially questioned her capacity, B's own testimony demonstrated a clear understanding of the procedure and her reasons for wanting it. Applying the Nilsson standards for sterilization petitions, the court found that the procedure was in B's best interests. Consequently, the petition was granted, affirming B's capacity to consent and modifying the previous order to authorize the tubal ligation.

GuardianshipSterilizationInformed ConsentMental Hygiene LawIncapacityDevelopmental DisabilityDown SyndromeReproductive RightsMedical TreatmentBest Interests
References
14
Case No. 99-11240 B, 08-CV-774A, Adv. No. 01-1193B
Regular Panel Decision
Nov 01, 2010

McHale v. Boulder Capital LLC (In Re 1031 Tax Group, LLC)

This memorandum opinion addresses the calculation of prejudgment interest on fraudulent transfer claims recovered by Gerard A. McHale, Jr., P.A., as Trustee for the 1031 Debtors Liquidation Trust, against the Boulder Defendants. The Court determined that three transfers in 2005 and 2006 were fraudulent under section 548(a) of the Bankruptcy Code. It concludes that the Trustee is entitled to prejudgment interest from the adversary proceeding commencement date, March 20, 2009, at the bank prime loan rates in effect on the dates of each transfer (6.5%, 8.0%, and 8.25%). Additionally, the Trustee is entitled to post-judgment interest at the federal judgment rate, and a final judgment is to be entered pursuant to Federal Rule of Civil Procedure 54(b).

Prejudgment InterestFraudulent TransferBankruptcy CodeAdversary ProceedingFederal Judgment RateMarket Rate InterestPrime RateRule 54(b) JudgmentTrustee RecoveryBankruptcy Court
References
26
Case No. ADJ3505091 (OXN 0144958) ADJ1732342 (OXN 0144957) ADJ6575424
Regular
Dec 22, 2014

JOSEFINA LOPEZ vs. RAMCO ENTERPRISES, REDWOOD FIRE & CASUALTY INSURANCE COMPANY c/o BERKSHIRE HATHAWAY HOMESTATE COMPANIES

The Workers' Compensation Appeals Board denied Ramco Enterprises' petition for reconsideration of a stipulated award. Ramco sought to overturn the award based on an alleged mutual mistake in calculating the permanent disability rate, attempting to invoke Code of Civil Procedure section 473(b). However, the Board found that CCP 473(b) is not binding in workers' compensation proceedings and that even if considered, the alleged mistake did not constitute sufficient grounds to set aside the jointly prepared and approved stipulated award. The Board emphasized that a unilateral mistake or a change of mind is insufficient to rescind an award.

Workers' Compensation Appeals BoardPetition for ReconsiderationWCJ reportCode of Civil Procedure section 473(b)Stipulated Awardmutual mistakejoint Stipulations with Request for Awardgood causeinadequate settlementunilateral mistake
References
5
Case No. MISSING
Regular Panel Decision
Mar 12, 1991

Downing v. B & B Machine Repair, Inc.

Plaintiff William Downing, a lumber yard worker, sued B & B Machine Repair, Inc. after severing his thumb while operating a table saw that lacked a safety guard. The plaintiff alleged negligence, claiming B & B failed to procure a replacement guard as requested by his employer 16 months before the incident. The Supreme Court, Bronx County, denied B & B's motion for summary judgment on the negligence claim, citing material issues of fact regarding the availability of replacement guards, as refuted by the plaintiff's expert. This appellate court affirmed the denial of summary judgment, finding B & B's arguments lacked merit. A dissenting opinion argued for dismissal, contending B & B's contractual obligation was vague, its actions were not the proximate cause of the injury, and the employer was primarily at fault for using an unsafe saw.

Summary JudgmentNegligenceStrict Products LiabilityWorkplace InjuryTable Saw AccidentSafety GuardProximate CauseDuty of CareContractual ObligationExpert Witness
References
3
Case No. ADJ456440 (ANA 0402548) ADJ7979843
Regular
Feb 03, 2014

GLENN MORASH vs. C & B TOWING AND TRANSPORT, STATE COMPENSATION INSURANCE FUND

The Appeals Board dismissed the applicant's Petition for Removal because the Order of Dismissal for Lack of Prosecution was a final order, making reconsideration, not removal, the appropriate remedy. The applicant's argument that the Board could set aside the dismissal under Labor Code section 5803 or equity powers under Code of Civil Procedure section 473 was rejected. The Board also admonished the applicant's attorney to file more coherent and specific petitions in the future.

Petition for RemovalOrder of DismissalLack of ProsecutionLabor Code section 5803inherent equity powerCode of Civil Procedure section 473Section 5900(a)aggrievedfinal orderreconsideration
References
0
Case No. 2021 NY Slip Op 02391 [193 AD3d 932]
Regular Panel Decision
Apr 21, 2021

Matter of Zamir F. (Ricardo B.)

The Administration for Children's Services appealed an order from the Family Court, Kings County, which had dismissed petitions alleging that Ricardo B. neglected Zamir F. through sexual abuse and derivatively neglected his other children, Elijah B., Jordan B., Jeremiah B., and Messiah B. The Appellate Division, Second Department, reversed the Family Court's order. It found that the petitioner had sufficiently established neglect and derivative neglect by a preponderance of the evidence, concluding that the testimony of the petitioner's child sexual abuse expert reliably corroborated Zamir's out-of-court statements. The court also determined that the Family Court had erred in its credibility assessment, particularly in preferring the father's expert's testimony. The matter was remitted to the Family Court for a dispositional hearing and the issuance of a dispositional order.

Child NeglectSexual AbuseDerivative NeglectFamily Court Act Article 10Corroboration of Child StatementsExpert TestimonyCredibility AssessmentAppellate ReviewParental DutiesRisk of Harm
References
8
Case No. MISSING
Regular Panel Decision

Civil Service Employees Ass'n v. New York State Public Employment Relations Board

The Civil Service Employees Association (C.S.E.A.) filed an Article 78 application to challenge actions taken by the City of White Plains and the Public Employment Relations Board (P.E.R.B.). C.S.E.A. sought to vacate a resolution where the City recognized a different employee organization (S.I.W.A.) for a portion of its employees, thereby altering C.S.E.A.'s bargaining unit, and to annul a P.E.R.B. order upholding the City's action. The City cross-moved to dismiss the petition, arguing improper venue and that it was not a proper party. The court determined that Albany County was the correct venue and that the City was a proper party. The central issue was whether the City could unilaterally change bargaining unit composition without C.S.E.A.'s consent or a decertification petition. The court ultimately denied C.S.E.A.'s requested relief, agreeing with P.E.R.B. that public employers can recognize different employee organizations once an incumbent's unchallenged representation status period expires, in accordance with Civil Service Law sections 204 and 208.

Public Employment RelationsCollective Bargaining UnitsEmployee Organization RecognitionTaylor LawCivil Service LawArticle 78 CPLRBargaining Unit AlterationDecertification ProceedingsPublic Employer RightsVenue Disputes
References
1
Case No. MISSING
Regular Panel Decision
Mar 26, 1998

In Re Bagel Bros. Bakery & Deli, Inc.

This order addresses whether Federal Rule of Bankruptcy Procedure 1014(b) imposes an automatic stay on proceedings in a subsequently-filed bankruptcy case. The case involves three Chapter 11 cases of Bagel Bros. Maple, Inc. and Bagel Bros. Deli & Bakery, Inc. in the Western District of New York, which are related to earlier Chapter 11 cases of MBC in the District of New Jersey. MBC filed a motion in New Jersey seeking to transfer venue and requested that the New York court automatically stay its proceedings based on Rule 1014(b). Bankruptcy Judge Michael J. Kaplan ruled that Rule 1014(b) does not constitute an automatic or self-executing stay upon the mere filing of a motion. Instead, a judicial determination and order from the first-filed court (District of New Jersey) are required to impose such a stay, ensuring that substantive rights are not abridged and allowing for judicial discretion in emergency matters. Therefore, the proceedings in the Western District of New York are not automatically stayed.

Bankruptcy ProcedureAutomatic StayFederal Rule of Bankruptcy Procedure 1014(b)Venue TransferChapter 11 ReorganizationInter-district BankruptcyJudicial InterventionSubstantive RightsFranchise AgreementsCash Collateral Disputes
References
12
Case No. MISSING
Regular Panel Decision

Gregory B. v. Gregory F.

This consolidated appeal addresses whether incarcerated parents "permanently neglected" their children under Social Services Law § 384-b (7) (a), thus justifying the termination of parental rights. In Matter of Gregory B., the father, incarcerated since 1980, proposed long-term foster care for his children until his release, which was rejected. Similarly, in Matter of Willie John B. and Matter of Delores B., the father, incarcerated since 1979, also offered indefinite foster care after relatives were found unwilling or unable to provide care. The Court of Appeals affirmed the termination of parental rights in all cases, holding that while 1983 statutory reforms acknowledged special circumstances for incarcerated parents, they did not excuse them from planning for their child's future. The Court concluded that indefinite foster care is not a "viable plan" as it is inconsistent with the purpose of foster care and deprives children of the essential permanency required for proper growth and development.

Permanent NeglectParental Rights TerminationIncarcerated ParentSocial Services LawFoster CareAdoptionChild WelfareFamily LawCourt of AppealsJudicial Review
References
14
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