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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

Desser v. Ashton

This opinion addresses the sufficiency of an oral contract to satisfy the "purchaser-seller" requirement in a private action under Section 10(b) of the 1934 Exchange Act and Rule 10b-5, where no actual purchase or sale of securities occurred. The court considers whether such an oral agreement, even if potentially unenforceable under the statute of frauds, can support a federal securities claim. Reviewing existing jurisprudence, the court emphasizes a liberal and flexible construction of anti-fraud provisions to protect investors. It concludes that an action under Rule 10b-5 is not deficient merely because the contract relied upon is oral rather than written. Consequently, the defendants' motions for summary judgment are denied, and the case is set to proceed to trial, affirming the court's jurisdiction over the matter.

Securities fraudOral contractsRule 10b-5Purchaser-seller requirementStatute of fraudsPendent jurisdictionSummary judgmentFederal court jurisdictionExchange Act of 1934Investor protection
References
18
Case No. MISSING
Regular Panel Decision

City of New York v. State

This case addresses the constitutionality of Chapter 5 of the Laws of 1999, which attempted to rescind New York City's commuter tax for New York State residents while retaining it for out-of-State commuters. The City of New York challenged the statute on home rule grounds, while residents of New Jersey and Connecticut, along with the State of Connecticut, argued it violated the Federal Constitution's Privileges and Immunities and Commerce Clauses. The Court held that Chapter 5 did not violate state home rule provisions. However, it found the statute unconstitutional under the Federal Privileges and Immunities and Commerce Clauses due to its discriminatory treatment of out-of-State commuters. Consequently, the 'poison pill' provision of Chapter 5 took effect, leading to the repeal of the entire New York City commuter tax as of July 1, 1999.

Commuter TaxHome Rule ProvisionsPrivileges and Immunities ClauseCommerce ClauseConstitutional ChallengeState TaxationTax DiscriminationNew York CityLegislative PowerStatutory Repeal
References
40
Case No. ADJ2154380
Regular
Jul 21, 2010

SPENCER DAVIS vs. CLARK & SULLIVAN, INC., LWP CLAIMS SACRAMENTO, BERKSHIRE HATHAWAY SAN FRANCISCO, BERKSHIRE HATHAWAY PASADENA

In this case, the defendant sought to disqualify a Qualified Medical Evaluator (QME) due to their alleged unavailability for deposition within 120 days as required by Administrative Director Rule 35.5(f). The Workers' Compensation Appeals Board (WCAB) denied the defendant's petition for removal. The WCAB found that Rule 31.5, which allows for replacement panels, does not apply to QME unavailability for deposition. Furthermore, the Board determined the defendant failed to demonstrate significant prejudice or irreparable harm, especially after rescheduling the deposition themselves.

Petition for RemovalQualified Medical EvaluatorDeposition UnavailabilityAdministrative Director RuleMandatory RegulationPrejudice and HarmReplacement PanelWCJ OrderUpper Extremities InjuryPsyche Injury
References
0
Case No. MISSING
Regular Panel Decision
Apr 17, 1990

Claim of Rogers v. Evans Plumbing & Heating

The claimant appealed a decision from the Workers’ Compensation Board, filed on April 17, 1990, which ruled his application untimely. The claimant had applied on August 31, 1988, to review two Workers’ Compensation Law Judge decisions from August 5, 1985, and October 1, 1985, denying compensation benefits for a period between February 7, 1983, and September 23, 1985. The Board correctly determined that the claimant's application was untimely as it was filed more than 30 days after the original decisions, citing Workers’ Compensation Law § 23 and 12 NYCRR 300.13 (a). The Board's decision to not entertain the untimely application was found to be neither arbitrary nor capricious. The higher court subsequently affirmed the Board's decision.

Untimely ApplicationWorkers' Compensation LawAppellate ReviewBoard DecisionProcedural TimelinessJudicial ReviewAppealSection 23NYCRR 300.13Claimant Benefits
References
1
Case No. MISSING
Regular Panel Decision

Metropolitan Funeral Directors Ass'n v. City of New York

Plaintiffs, including the Metropolitan Funeral Directors Association, John C. Sommese, Anthony J. Martino, Hess-Miller Funeral Home, Inc., and Simonson Funeral Home, Inc., initiated an action seeking a declaratory judgment against the City of New York, the New York City Department of Consumer Affairs (DCA), and Commissioner Jules Polonetsky. The plaintiffs challenged four recently amended DCA rules (5-162, 5-164, 5-165, 5-166) pertaining to the regulation of the funeral home industry. They contended that these rules were preempted by State law, exceeded the Commissioner's authority, lacked a legitimate government purpose, were unconstitutionally vague, and were arbitrary and capricious. Additionally, plaintiffs sought a preliminary injunction to prevent the enforcement of these rules, arguing that their implementation would cause irreparable harm to their businesses. Defendants countered that the rules were consumer-protective, a rational exercise of authority, and consistent with State law, citing a February 1999 DCA investigation report titled "The High Cost of Dying." The court, presided over by Justice Richard F. Braun, denied the plaintiffs' motion for a preliminary injunction, concluding that they failed to demonstrate a likelihood of success on the merits, irreparable injury, or a favorable balance of equities. The court also noted the plaintiffs' incomplete statement as required by CPLR 6001.

Funeral Home RegulationConsumer ProtectionDeclaratory JudgmentPreliminary InjunctionState PreemptionLocal OrdinancesAdministrative LawStatutory AuthorityUnconstitutionally VagueArbitrary and Capricious
References
21
Case No. ADJ10348591 ADJ10349019
Regular
Jan 07, 2019

MIGUEL VELAZQUEZ, SERVANDO VELAZQUEZ vs. ARTEMIO ARCE, SOLOMON MARTINEZ

The Workers' Compensation Appeals Board denied a defendant's petition for reconsideration, upholding a prior finding that liens for interpreting services were not barred by AD rule 9792.5.5. This rule, requiring a second review request for fee schedule disputes, did not apply because the interpreter services were not subject to an applicable fee schedule at the time of service. Therefore, the lien claimant's failure to request a second review did not preclude the WCAB from adjudicating the lien dispute. The Board reasoned that AD rule 9792.5.5 and associated statutes only mandate the second review process for disputes concerning amounts under an "applicable fee schedule."

Workers' Compensation Appeals BoardAD Rule 9792.5.5Official Medical Fee ScheduleIndependent Bill ReviewExplanation of ReviewLabor Code section 4603.2Senate Bill 863Threshold IssueFee Schedule DisputeInterpreter Services
References
0
Case No. MISSING
Regular Panel Decision

Noonan v. Granville-Smith

In this complex litigation, plaintiffs brought Rule 10b-5 fraud allegations against various defendants, including a law firm, concerning the sale of limited partnership interests in the now insolvent Maidsville Coal Mining Partnership. The defendant law firm subsequently filed third-party complaints seeking contribution from another law firm claimed to have participated in such representation. The third-party defendants moved to dismiss these complaints, arguing that Rule 10b-5 does not provide for contribution claims. The court denied these motions, rejecting the invitation to overturn established precedents like Globus II and Tucker v. Arthur Andersen & Co. It emphasized that while Supreme Court cases cited by the third-party defendants dealt with statutory remedies, Rule 10b-5 actions are judicially established and delimited, and the Supreme Court had explicitly left open the viability of Globus II.

Rule 10b-5Securities FraudContribution ClaimsLimited Partnership InterestsMotions to DismissSupreme Court PrecedentJudicial DelimitationFraud AllegationsLaw Firm LiabilityThird-Party Complaints
References
7
Case No. ADJ1384238 (SAC 0366460)
Regular
Oct 09, 2017

ROSA VIRGEN vs. MACY'S WEST, MACY'S CORPORATE SERVICES-RISK MANAGEMENT DEPARTMENT

The Workers' Compensation Appeals Board denied Macy's West's petition for removal, upholding the WCJ's decision not to grant a replacement Qualified Medical Evaluator (QME). The Board found that a late supplemental report alone does not mandate a replacement QME under LC 4062.5 or AD Rule 31.5(a)(12). Granting a replacement QME for untimely supplemental reporting is discretionary and requires a showing of good cause, which Macy's failed to demonstrate. The Appeals Board retains exclusive jurisdiction over the validity of replacement panels.

Workers' Compensation Appeals BoardPetition for RemovalQualified Medical EvaluationPQMEReplacement PanelMedical DirectorTimelinessSupplemental ReportGood CausePrejudice
References
4
Case No. ADJ7643460
Regular
May 01, 2017

Tracy Lee vs. XCHANGING, GRANITE STATES INSURANCE COMPANY, SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

This case concerns Defendant's Petition for Removal seeking a new Qualified Medical Evaluator (QME) panel due to a QME's untimely supplemental report. The Appeals Board denied the petition, finding Defendant failed to demonstrate substantial prejudice or irreparable harm. While the QME's report was late, Labor Code Section 4062.5 and Rule 31.5(a)(12) do not mandate replacement for untimely supplemental reports, making the decision discretionary. The WCJ's decision not to order a replacement was reasonable given the QME's extensive involvement and the lack of a mandatory replacement provision.

Workers' Compensation Appeals BoardPetition for RemovalQualified Medical EvaluatorQME panelsupplemental reportuntimelysubstantial prejudiceirreparable harmLabor Code section 4062.5Rule 31.5(a)(12)
References
5
Case No. MISSING
Regular Panel Decision

Rosen v. Dick

The Trustee of Bermec Corp. sued Arthur Andersen & Co. for negligence, among other claims. Andersen moved for partial summary judgment, asserting the negligence claims were barred by the statute of limitations. The parties had an agreement extending the limitation period if an action was "instituted" by March 31, 1974. Although the complaint was filed on March 21, 1974, Andersen was not served until April 2, 1974. The court ruled that under New York Civil Practice Law and Rules § 203(b)5, a claim is timely if the summons and complaint are delivered to the appropriate officer and served within sixty days. Applying this state law principle, the court found the action was timely instituted and denied Andersen's motion for partial summary judgment.

Statute of LimitationsNegligencePartial Summary JudgmentFederal Bankruptcy ActCommencement of ActionService of ProcessFederal Rules of Civil ProcedureNew York Civil Practice Law and RulesErie DoctrinePendent Jurisdiction
References
3
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