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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

Moss v. Department of Civil Service

The petitioner, a Senior Youth Parole Worker, initiated an Article 78 proceeding challenging the State Department of Civil Service's requirement of a Master's degree for the Youth Parole Supervisor promotion examination. His application was denied due to the lack of this degree, despite his advanced graduate study and prior assurances of eligibility based on earlier prerequisites. The court affirmed the Civil Service Department's broad discretion in establishing minimum qualifications for competitive examinations. It ruled that earlier prerequisites or unauthorized assurances do not confer a vested right to bypass current requirements, which are subject to the exclusive jurisdiction of the State Department of Civil Service. Consequently, the application was denied, and the petition dismissed.

Civil Service LawPromotion ExaminationEducational RequirementsMaster's DegreeYouth Parole SupervisorDiscretionVested RightsArticle 78 ProceedingState EmployeesCivil Service Commission
References
6
Case No. 2015 NY Slip Op 04613
Regular Panel Decision
Jun 03, 2015

Kiskiel v. Stone Edge Management, Inc.

The injured plaintiff, Edward Kiskiel, a New York City sanitation worker, allegedly slipped and fell on a puddle of wet paint in a parking lot. The defendant, Stone Edge Management, Inc., managed an adjoining condominium complex that had an easement over the parking lot. The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint. On appeal, the Appellate Division, Second Department, reversed the order, holding that the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating it neither created the hazardous condition nor had actual or constructive notice of its existence. The court found the condition was transient and not visible prior to the accident, and there was no evidence, only speculation, that the defendant created it. Thus, the defendant's motion for summary judgment was granted.

Slip and FallPremises LiabilitySummary JudgmentConstructive NoticeHazardous ConditionParking Lot AccidentProperty ManagementAppellate ReviewNegligencePersonal Injury
References
4
Case No. MISSING
Regular Panel Decision

Prestige Builder & Management LLC v. Safeco Insurance Co. of America

Prestige Builder & Management LLC, a New York subcontractor, initiated a diversity action against Triton Structural Concrete Incorporated, its surety Safeco Insurance Co. of America, and individual Triton employees Mary Anne Wilson, Elaina Gallegos, and Debra Peterson. Prestige sought $134,927.66 for payment bond claims and alleged fraud regarding work performed on a New York City Parks Department amphitheater project. The fraud claims asserted that Triton employees falsely certified forms to the Parks Department, indicating no outstanding payments to subcontractors, while Prestige was still owed funds. Defendants filed a motion to dismiss the fraud claims, citing lack of standing and failure to meet Rule 9(b) particularity requirements. The Court denied the motion, upholding the New York third-party reliance doctrine and finding Prestige's fraud allegations sufficiently particular.

Fraud claimsMotion to dismissSubcontractor paymentPayment bondThird-party relianceNew York lawFederal Rules of Civil ProcedureContract disputeGeneral contractorSurety
References
31
Case No. MISSING
Regular Panel Decision

Balsam Lake Anglers Club v. Department of Environmental Conservation

The petitioner, Balsam Lake Anglers Club, initiated a hybrid proceeding challenging a Unit Management Plan (UMP) for the Balsam Lake Mountain Wild Forest area. The challenge focused on alleged violations of Article XIV of the New York State Constitution concerning timber removal, infringement on easements, and non-compliance with the State Environmental Quality Review Act (SEQRA). The court determined that the UMP did not violate the State Constitution or the petitioner's property rights as the timber cutting was deemed insubstantial and consistent with public use. However, the court found that the respondents, particularly the Department of Environmental Conservation, failed to adhere to SEQRA's procedural and substantive requirements by issuing a negative declaration without a comprehensive 'hard look' or a reasoned elaboration of environmental impacts. Consequently, the petition was granted in part regarding the SEQRA violation, and the matter was remitted to the Department of Environmental Conservation for further proceedings consistent with the ruling.

Environmental LawSEQRAUnit Management PlanForest PreserveArticle XIVNew York State ConstitutionTimber CuttingEasementsWild Forest LandsJudicial Review
References
16
Case No. MISSING
Regular Panel Decision

Hale v. New York State Department of Mental Health

Curtis Hale, Jr. initiated an action under Title VII, alleging racial discrimination after his termination as a Mental Hygiene Therapy Aide at the Bronx Children’s Psychiatric Center. He claimed the Civil Service Employee Association failed to provide adequate representation and the New York State Department of Mental Health breached contractual obligations. The court, treating the State's motion to dismiss as one for summary judgment, found Hale's Title VII claims time-barred. His EEOC complaint was filed beyond the 180 or 300-day statutory limitations period, which commenced from the notice of termination (December 8, 1978), not the actual discharge date. Additionally, the court determined it lacked subject-matter jurisdiction over Hale’s state law breach of contract claim against the State, citing an absence of diversity and no federal question under the Labor Management Relations Act. Consequently, the court granted the State’s motion, dismissing the complaint against the New York State Department of Mental Health.

Racial DiscriminationTitle VIIEmployment TerminationStatute of LimitationsSummary JudgmentBreach of ContractSubject Matter JurisdictionPendent JurisdictionEleventh AmendmentCivil Service
References
10
Case No. MISSING
Regular Panel Decision

Matter of Entergy Nuclear Indian Point 2, LLC v. New York State Department of State

Petitioners, identified as the owners and operators of Indian Point Energy Center, appealed a judgment that dismissed their challenge to a modification by respondents, the Secretary of State, Department of Environmental Conservation, and Department of State. The modification extended a statutorily protected environmental habitat in the Hudson River, now called 'Hudson Highlands,' impacting the area near Indian Point. Petitioners argued that the modification lacked a rational scientific basis, constituted formal rulemaking without proper procedure, and that the denial of their discovery requests was an abuse of discretion. The Appellate Division affirmed the Supreme Court's judgment, deferring to the agencies' interpretation of their regulations and finding the modification rational, not formal rulemaking, and the discovery denial justified.

Environmental ProtectionHabitat ModificationAgency DeferenceCPLR Article 78Declaratory JudgmentRegulatory InterpretationScientific EvidenceFormal RulemakingAdministrative ProcedureDiscovery Denial
References
24
Case No. MISSING
Regular Panel Decision

Fickling v. New York State Department of Civil Service

This case involves a lawsuit brought by eight plaintiffs, primarily African-American and Hispanic former employees, against the New York State Department of Civil Service and Westchester County Department of Social Services. Plaintiffs alleged that their termination as Welfare Eligibility Examiners, due to failing competitive examinations, was unlawful under Title VII of the Civil Rights Act and the New York State Executive Law § 296. They claimed the examination had a racially disparate impact and lacked content validity, failing to serve the defendants' employment goal of fair competition. The court found that the examinations indeed had a disparate impact on African-Americans and Hispanics and that the defendants failed to provide credible evidence that the tests served a legitimate business goal. Therefore, the court ruled in favor of the plaintiffs.

Employment DiscriminationTitle VII Civil Rights ActDisparate ImpactCivil Service ExaminationsContent ValidityJob AnalysisRacial DiscriminationHispanic DiscriminationWelfare Eligibility ExaminersNew York State Law
References
8
Case No. MISSING
Regular Panel Decision

McClernon v. Beaver Dams Volunteer Fire Department, Inc.

Plaintiff Michael J. McClernon, Sr., a former President of the Beaver Dams Volunteer Fire Department, sued the Department under 42 U.S.C. § 1983, claiming his civil rights were violated when he was suspended and expelled. McClernon alleged retaliation for exercising his freedom of speech after writing a letter to the U.S. Fire Administration, complaining about unequal grant money distribution and alleging misuse of funds by other fire departments. The court found that while his speech touched on public concern, it had a damaging effect on inter-departmental relations and caused disruption within the Beaver Dams Department. Consequently, the court granted summary judgment to the defendant, concluding that the department was justified in expelling McClernon due to the detrimental impact of his speech.

Civil RightsFirst AmendmentFreedom of SpeechRetaliationPublic EmployeeVolunteer Fire DepartmentSummary JudgmentPublic ConcernInter-organizational CooperationWorkplace Disruption
References
20
Case No. MISSING
Regular Panel Decision

Anderberg v. New York State Department of Environmental Conservation

The petitioners, residents along Clove Road, initiated a CPLR article 78 proceeding against the New York State Department of Environmental Conservation (DEC) and Ulster County Department of Public Works (Ulster County). The proceeding challenged DEC's decision to issue a stream disturbance permit for the replacement of a bridge on Clove Road, arguing that the project required a full State Environmental Quality Review Act (SEQRA) review, including an environmental assessment form (EAF). DEC and Ulster County classified the project as a Type II action, asserting it was a "replacement in kind" and thus exempt from comprehensive SEQRA review. The court found that the respondents had adequately considered environmental factors and that their classification of the project was not arbitrary or capricious. Consequently, the court dismissed the petition, ruling that no further SEQRA review was necessary. Additionally, the court denied the petitioners' motion for a default judgment against the Town of Gardiner concerning two other bridges, deeming the request premature.

Environmental LawSEQRA ComplianceBridge ConstructionAdministrative ReviewType II ActionStream Disturbance PermitPublic Works ProjectJudicial ScrutinyUlster CountyNew York State DEC
References
7
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