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Case Law Database

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

Case No. MISSING
Regular Panel Decision
Jun 29, 1992

Mark v. Eshkar

This case involves a plaintiff, owner of Manhattan premises, and defendants Eshkar and Jules Schapiro, whose adjacent building shared a party wall. Following rehabilitation work on Schapiro's building in 1984, minor damage to the party wall occurred. In 1989, more significant structural cracks appeared, attributed to allegedly faulty foundation work supervised by Eshkar. The trial court dismissed the plaintiff's negligence claim against Eshkar, deeming it barred by a three-year statute of limitations, which it held commenced in 1985 upon the issuance of the certificate of occupancy. The appellate court reversed this decision, ruling that the cause of action accrued in 1989 when the structural cracks became visible, aligning with the principle that the statute of limitations for damages resulting from loss of lateral support begins when such damages are sustained and become apparent.

Statute of LimitationsNegligenceReal PropertyParty WallConstruction DefectsAccrual of Cause of ActionLatent DefectsStructural DamageNew York LawAppellate Procedure
References
2
Case No. MISSING
Regular Panel Decision

Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C.

Plaintiff Karl Davis sued attorney Bernard A. Kuttner for legal malpractice, alleging failure to pursue certain claims after a workplace injury in 1989. Kuttner moved to dismiss the lawsuit, arguing that the action was barred by the recently amended CPLR 214 (6), which shortened the statute of limitations for non-medical malpractice to three years and would have rendered Davis's claims, which accrued in 1991, time-barred by his 1997 filing against Kuttner. The court denied Kuttner's motion, ruling that applying the amended CPLR 214 (6) in this instance would unconstitutionally deprive the plaintiff of a reasonable time to bring suit, as the claims would have been immediately barred upon the amendment's effective date without legislative provision for a grace period. Consequently, the court held that the six-year statute of limitations previously in force applied, deeming Davis's claims timely.

Legal MalpracticeStatute of LimitationsCPLR 214 (6) AmendmentConstitutional LawDue ProcessRetroactivity of LawWorkers' Compensation ClaimNegligenceWorkplace InjuryMotion to Dismiss
References
27
Case No. MISSING
Regular Panel Decision

Ashmead v. Groper

The plaintiff appealed an order from the Supreme Court (Sullivan County), which dismissed their legal malpractice action against an attorney as barred by the Statute of Limitations. The plaintiff had initially retained the defendant attorney in 1981 for a workers' compensation claim, which closed in 1984 after an award for partial disability. In 1995, the plaintiff sued the attorney for negligence regarding the calculation of the average weekly wage. The Appellate Division affirmed the dismissal, rejecting the plaintiff's argument of continuous representation, stating that a professional's failure to act does not constitute such. The court found that the Statute of Limitations expired, at the latest, six years after the workers' compensation case closed in May 1984.

Legal MalpracticeStatute of LimitationsContinuous Representation DoctrineWorkers' CompensationAttorney NegligenceAppellate ReviewDismissalAffirmationNew York LawCivil Procedure
References
8
Case No. MISSING
Regular Panel Decision

Matter of Jessica

The case concerns a respondent in Family Court, accused of sexually molesting his daughter, who sought to have his daughter psychologically examined by an expert of his choice. Initially, there was no provision for such an examination if the child's custodians objected. However, during the appeal, the Legislature amended Family Court Act § 1038 (c), granting respondents or law guardians the right to move for an order directing a child's examination, with the court weighing the need for trial preparation against potential harm to the child. The Court of Appeals determined that this newly amended statute is controlling, even though it was not in effect during the original application. Consequently, the Appellate Division's order was reversed, and the matter was remitted to the Family Court for reconsideration under the guidelines of the amended statute, emphasizing a discretionary approach over mechanical application.

Family LawChild Protective ProceedingsDiscoveryPsychological ExaminationAppellate ReviewStatutory InterpretationProcedural FairnessJudicial DiscretionChild WelfareEvidence Law
References
1
Case No. MISSING
Regular Panel Decision
May 18, 1994

Claim of Boshart v. St. Francis Hospital

The claimant, a hospital employee, stopped working due to an aggravated preexisting back condition and filed a claim for workers' compensation benefits. Her claim was initially denied, but a Workers’ Compensation Law Judge found prima facie medical evidence for an occupational back condition. Upon appeal, the Workers' Compensation Board rejected the employer's contention that the claim was barred by Workers’ Compensation Law § 28, ruling the employer had waived this defense. The employer appealed this decision. The court affirmed the Board's decision, concluding that the employer failed to raise the Statute of Limitations defense at the first hearing where all parties were present, thereby waiving the right to assert it.

Workers' CompensationStatute of LimitationsWaiverOccupational DiseaseBack InjuryEmployer LiabilityAppellate ReviewProcedural DefenseInsurance ClaimBoard Decision
References
2
Case No. MISSING
Regular Panel Decision
Jul 02, 2002

Mason v. American Tobacco Co.

Plaintiffs brought a class action under the Medicare as Secondary Payer (MSP) statute, seeking certification for a class of individuals who received or are receiving health care services for tobacco-related illnesses, paid for by Medicare. Defendants opposed certification and moved to dismiss. The court denied class certification and dismissed the case, finding that the plaintiffs' interpretation of the ambiguous MSP statute was inappropriate. The court ruled that the statute does not support a qui tam-type individual action masquerading as a class action, and defendants, as tortfeasors, do not qualify as "self-insured plans" under the statute without specific agreements or funds. The decision emphasized that the legislative history does not indicate a Congressional design to apply the MSP statute broadly to general tortfeasors.

Medicare Secondary Payer ActClass ActionStatutory InterpretationQui Tam ActionSelf-Insured PlanTobacco LitigationHealthcare LawFederal Rules of Civil Procedure Rule 23Motion to DismissClass Certification Denial
References
21
Case No. MISSING
Regular Panel Decision

Fortunato v. Workers' Compensation Board

The petitioner appealed two rulings: a Supreme Court judgment dismissing his CPLR article 78 application to compel the Workers’ Compensation Board to renew his license, and a subsequent order denying reconsideration. The Board had denied license renewal due to petitioner's failure to provide records, reapply, and demonstrate competency. The Appellate Division affirmed the Supreme Court's dismissal, ruling that the proceeding was time-barred by the four-month Statute of Limitations. Additionally, the court found that mandamus was not appropriate for a discretionary act and that the Board’s determination was not arbitrary or capricious.

License RenewalMandamusCPLR Article 78Workers' Compensation BoardStatute of LimitationsAdministrative LawJudicial ReviewArbitrary and CapriciousDiscretionary ActNonattorney Representative
References
15
Case No. 2019 NY Slip Op 01015 [169 AD3d 1479]
Regular Panel Decision
Feb 08, 2019

Matter of Monroe County Fedn. of Social Workers, IUE-CWA Local 381 v. Stander

The Appellate Division, Fourth Department, dismissed a CPLR article 78 proceeding commenced by the Monroe County Federation of Social Workers. Petitioner sought to compel Hon. Thomas A. Stander, a retired Supreme Court Justice, to render a judgment in an underlying special proceeding. The petition was found untimely, filed in August 2018, beyond the four-month statute of limitations from the December 2017 refusal of demand. Additionally, it was jurisdictionally defective due to a lack of personal jurisdiction over the respondent. Finally, the court concluded the petition was without merit, as mandamus relief is an extraordinary remedy for mandatory, not discretionary, acts, and the respondent's "decision and order" was deemed a judgment from which petitioner failed to appeal.

Mandamus to CompelCPLR Article 78Timeliness of ActionPersonal JurisdictionExtraordinary RemedyAppellate ProcedureJudgment EntrySpecial ProceedingSupreme Court JusticeRetired Justice
References
24
Case No. MISSING
Regular Panel Decision

Scalone v. Celotex Corp.

Plaintiff George Scalone, a New Jersey resident, brought an action in New York claiming asbestos-related injuries from exposure in New York worksites. Defendants Combustion Engineering, Inc. and Owens-Corning Fiberglass Corporation moved for summary judgment, arguing the action was time-barred by the New York Borrowing Statute (C.P.L.R. § 202). They contended that Scalone's cause of action accrued in New Jersey, where he became ill, and therefore New Jersey's statute of limitations should apply, precluding the New York Toxic Tort Revival Statute (C.P.L.R. § 214-c(2)). The court denied the motions, holding that for the purposes of the Toxic Tort Revival Statute, the place of accrual and place of injury are the same, and both are New York, given the plaintiff's exposure in the state. The court emphasized the remedial purpose of the Toxic Tort Revival Statute and found no clear legislative intent to exclude non-residents exposed in New York, even if they had other potential forums.

Toxic TortAsbestos ExposureStatute of LimitationsBorrowing StatuteToxic Tort Revival StatuteC.P.L.R. § 214-c(2)C.P.L.R. § 202Personal InjuryInterstate LawForum Shopping
References
2
Case No. MISSING
Regular Panel Decision

Desmond v. City of New York

The case concerns a plaintiff police officer who sued New York City for injuries sustained during a high-speed vehicle pursuit initiated by his partner. The officer alleged violations of Vehicle and Traffic Law provisions and an internal Police Department memorandum (Memo No. 3) concerning pursuit policies. While a jury found no violation of traffic laws, it concluded that Memo No. 3 was breached, a finding upheld by the Appellate Division. However, the Court of Appeals reversed, holding that Memo No. 3, which offers discretionary guidelines rather than imposing "clear legal duties," cannot form the basis for a cause of action under General Municipal Law § 205-e. The court emphasized that such policy pronouncements allowing professional judgment are not the type of governmental "requirement" envisioned by the statute, thus dismissing the complaint.

high-speed pursuitpolice misconductGeneral Municipal Law § 205-edepartmental directiveofficer discretionline-of-duty injuryfirefighters' rulestatutory cause of actiongovernmental liabilitytort law
References
8
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