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

Case No. 08-CV-3175 (JG)(JO)
Regular Panel Decision
Aug 25, 2009

Century 21 Real Estate LLC v. Bercosa Corp.

Century 21 Real Estate LLC sued Bercosa Corp. and its owner Pedro Bernard for breach of contract and trademark infringement under the Lanham Act. The defendants failed to respond to the complaint, leading to a motion for default judgment. Magistrate Judge James Orenstein issued a Report and Recommendation, which District Judge John Gleeson adopted, finding the defendants liable. The court awarded Century 21 a total of $319,832.32 in monetary damages, including contract claims, statutory damages, attorneys' fees, and costs. Additionally, the defendants were permanently enjoined from using the Century 21 Marks and ordered to cooperate in an audit of Bercosa’s books and records.

Default JudgmentTrademark InfringementLanham ActBreach of ContractFranchise AgreementMonetary DamagesInjunctive ReliefAttorneys' FeesAudit OrderWillful Violation
References
66
Case No. 2024 NY Slip Op 00194 [223 AD3d 747]
Regular Panel Decision
Jan 17, 2024

Ochoa v. JEM Real Estate Co., LLC

Carlos Ochoa, the plaintiff, sustained personal injuries after falling from an A-frame ladder while working at a building owned by JEM Real Estate Co., LLC, and leased by Bobwhite Counter, LLC. He commenced an action alleging violations of Labor Law §§ 240 (1) and 241 (6). The Supreme Court granted Ochoa's motion for summary judgment on the issue of liability under Labor Law § 240 (1) and denied the defendants' cross-motion to dismiss the Labor Law claims. The Appellate Division, Second Department, affirmed the Supreme Court's order, finding that the plaintiff established a prima facie case of a defective ladder in violation of Labor Law § 240 (1) and that the defendants failed to raise a triable issue of fact. The court also upheld the denial of summary judgment dismissing the Labor Law § 241 (6) claim due to unresolved factual issues regarding Industrial Code violations.

Personal InjuryLabor LawSummary JudgmentAppellate ReviewLadder AccidentWorkplace SafetyConstruction AccidentStatutory ViolationProximate CauseNondelegable Duty
References
14
Case No. 2021 NY Slip Op 04540
Regular Panel Decision
Jul 28, 2021

Garcia v. Emerick Gross Real Estate, L.P.

David Garcia, an employee of Temperature Systems, Inc. (TSI), sustained personal injuries after falling from a ladder supplied by Emerick Gross Real Estate, L.P. (Emerick) while working at one of Emerick's properties. Garcia sued Emerick alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), and common-law negligence, prompting Emerick to file a third-party action against TSI for contractual indemnification. The Supreme Court, Nassau County, denied both Garcia's and Emerick's motions for summary judgment, and TSI's cross-motion for summary judgment dismissing the third-party complaint. Additionally, the Supreme Court granted Garcia's cross-motion for discovery sanctions against Emerick for spoliation of evidence, determining that Garcia was entitled to a negative inference at trial due to the disposal of the ladder. The Appellate Division, Second Department, affirmed the Supreme Court's order in its entirety, concluding that triable issues of fact existed regarding whether Garcia was a recalcitrant worker and the sole proximate cause of his injuries, and whether the alleged contractual indemnification provision was enforceable.

Personal InjuryLabor LawElevation-related HazardsSummary JudgmentContractual IndemnificationSpoliation of EvidenceNegative InferenceRecalcitrant WorkerProximate CauseSafe Place to Work
References
18
Case No. MISSING
Regular Panel Decision

Stetka v. Hunt Real Estate Corp.

Plaintiff Mary Lou Stetka initially filed a pro se action, later amended with counsel, alleging sex discrimination and harassment under Title VII of the Civil Rights Act and the New York State Human Rights Law against Hunt Real Estate. Defendant Hunt Real Estate moved for summary judgment, contending that Stetka was an independent contractor, not an employee, and thus not covered by these employment discrimination statutes. The court applied the common law agency test, considering factors such as control over work, method of payment, and tax treatment. The court found that Stetka, a licensed real estate agent, worked autonomously, set her own hours, developed her own business, and received commissions without employee benefits or tax deductions, concluding she was an independent contractor. Consequently, the court granted summary judgment for Hunt Real Estate on the federal claim and dismissed the pendent state claim due to lack of original jurisdiction.

Employment DiscriminationSex DiscriminationTitle VIINew York State Human Rights LawIndependent Contractor StatusSummary JudgmentCommon Law Agency TestReal Estate IndustrySexual Harassment ClaimPendent Jurisdiction
References
28
Case No. MISSING
Regular Panel Decision

Claim of Gallagher ex rel. Gallagher v. Houlihan Lawrence Real Estate

Claimant, the wife of a deceased real estate agent, sought workers' compensation benefits, asserting her husband was an employee of the real estate firm. The Workers’ Compensation Law Judge (WCLJ) and the Workers’ Compensation Board denied the claim, relying on an independent contractor agreement. On appeal, the court found that the WCLJ prematurely closed the hearing, preventing the claimant from presenting further evidence regarding the employer-employee relationship. Consequently, the court reversed the Board's decision and remitted the matter for further proceedings to fully develop the record on this crucial issue.

Workers' CompensationIndependent ContractorEmployer-Employee RelationshipAppellate ReviewRemittalSubstantial EvidenceRight of ControlReal Estate AgentDeath BenefitsWorkers' Compensation Board Decision
References
3
Case No. MISSING
Regular Panel Decision
May 25, 1994

Claim of Clifford v. Mark Greenberg Real Estate, Inc.

This case involves an appeal from a Workers' Compensation Board decision that determined Hamilton Gardens Owners Corporation was the claimant's employer. The claimant worked as a building manager at an apartment complex owned by Hamilton Gardens and operated by Mark Greenberg Real Estate, Inc. Despite evidence suggesting Greenberg provided claimant with equipment, paychecks, and handled termination notices, the Board found Hamilton to be the employer. This finding was based on evidence that Greenberg was Hamilton's managing agent, Hamilton was listed on the claimant's W-2 form, and Hamilton's Board of Directors retained ultimate authority over hiring, salary, and termination. The appellate court affirmed the Board's decision, concluding it was supported by substantial evidence.

Workers' CompensationEmployer-Employee RelationshipSubstantial EvidenceBuilding ManagerCorporate ControlW-2 FormManaging AgentAppellate ReviewBoard DecisionEmployment Dispute
References
0
Case No. 2016 NY Slip Op 02787 [138 AD3d 797]
Regular Panel Decision
Apr 13, 2016

Mileski v. MSC Indus. Direct Co., Inc.

Drena Mileski, as administratrix of Ronald P. Mileski's estate, initiated a wrongful death action following Ronald's death from injuries sustained operating a lathe machine. The plaintiff sought to amend the complaint to include Burns Real Estate, LLC, Nijon Tool Co., Inc., Island Machine Supply Corp., and John Raymond Burns as additional defendants, relying on the relation-back doctrine. The Supreme Court granted this amendment. However, the Appellate Division reversed, ruling that the relation-back doctrine was inapplicable. The court reasoned that if the new defendants were united in interest with the employer, they would share the employer's immunity under the Workers' Compensation Law, rendering the claims time-barred.

Wrongful DeathLathe AccidentRelation-Back DoctrineStatute of LimitationsAmended ComplaintVicarious LiabilityWorkers' Compensation ImmunityAppellate ProcedureTimeliness of AppealUnity of Interest
References
12
Case No. 2020 NY Slip Op 07325 [189 AD3d 490]
Regular Panel Decision
Dec 08, 2020

Rudnitsky v. Macy's Real Estate, LLC

This case involves an appeal from an order related to personal injuries sustained by Lee Rudnitsky, an employee of Shorr Electrical Contracting, Inc., who tripped over a two-by-four piece of lumber during a renovation at Macy's Herald Square. Plaintiffs moved for summary judgment on a Labor Law § 241 (6) claim. The Appellate Division modified the Supreme Court's order, denying the plaintiff's motion for summary judgment, denying Commodore Construction Corp.'s motion for summary judgment, and denying Shorr Electrical Contracting, Inc.'s motion for summary judgment dismissing Structure Tone, Inc.'s claim for attorneys' fees. The court found issues of fact regarding whether the obstruction was integral to the work being performed and addressed indemnification and breach of contract claims among the parties.

construction accidentpersonal injurysummary judgmentLabor LawIndustrial Codeindemnificationbreach of contractfailure to procure insurancepremises liabilityworkplace safety
References
7
Case No. MISSING
Regular Panel Decision

In re the Estate of DelGatto

Christopher Fasulo, administrator c.t.a. of Pauline DelGatto’s estate, appealed a Surrogate’s Court decree in Kings County, which, upon a jury verdict, favored Nora Bradley regarding the title to real property. The decedent, Pauline DelGatto, had executed a trust document and deed conveying her house to Nora Bradley just weeks before her death, with Bradley as trustee and beneficiary. Fasulo alleged the decedent lacked mental capacity and was subjected to undue influence. The jury found that Fasulo failed to sustain his burden of proof on both claims. The appellate court affirmed the decree, ruling that the petitioner did not meet the burden of proof for lack of mental competence or undue influence, especially since the transaction was supervised by an attorney and the circumstances were explained.

Estate lawreal propertyundue influencemental capacityburden of proofjury verdicttrust instrumentdeedattorney-client privilegeSCPA 2103
References
25
Case No. MISSING
Regular Panel Decision

McRae v. Eagan Real Estate

A real estate salesperson, primarily working from her home office, sustained a back injury when she fell down stairs at her residence. The incident occurred after a business meeting with a carpet installer for her employer and just before she was to leave to perform another work-related task (removing a lockbox). A Workers’ Compensation Law Judge initially found the injury compensable, a decision upheld by the Workers’ Compensation Board. The Appellate Division affirmed, ruling that the claimant's home had become a place of employment, and her injuries arose out of and in the course of her employment.

Real Estate SalespersonWork From HomeHome Office InjuryCourse of EmploymentCompensable InjuryAppellate ReviewWorkers' Compensation BoardFallsBack InjuryBusiness Meeting
References
4
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