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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

Fourth Branch Associates v. Department of Environmental Conservation

Petitioners Joseph Harris and Fourth Branch Associates initiated a CPLR article 78 proceeding challenging the New York State Department of Environmental Conservation (NYSDEC)'s issuance of a 'Notice of Complete Application and Determination of No Significance' and a '401 Water Quality Certificate' for a proposed hydroelectric project by ENERCO Corporation and Adirondack Hydro Development Corporation (AHDC). Petitioners contended that NYSDEC violated the State Environmental Quality Review Act (SEQRA) by not requiring an environmental assessment form, an environmental impact statement, or public hearings. AHDC argued federal preemption by the Federal Power Act, limiting NYSDEC's review to water quality standards. NYSDEC also moved for remand, acknowledging a procedural error in not requiring an environmental assessment form but arguing against preemption. The court determined that the Federal Power Act preempts NYSDEC from conducting a full SEQRA environmental review, limiting its authority to assessing compliance with State water quality standards. Consequently, NYSDEC was found to lack authority to require SEQRA-mandated forms, statements, or hearings for the 401 water quality certification.

Environmental LawFederal PreemptionWater Quality CertificationHydroelectric ProjectsState Environmental Quality Review Act (SEQRA)Federal Power ActCPLR Article 78 ProceedingState AuthorityEnvironmental ReviewRegulatory Control
References
56
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
Case No. MISSING
Regular Panel Decision

ELG Utica Alloys, Inc. v. Department of Environmental Conservation

Petitioner Universal Waste, Inc. initiated an Article 78 proceeding to challenge the Commissioner of Environmental Conservation's denial of its application to reclassify a 21-acre parcel in Utica, Oneida County, from a Class 2 to a Class 3 inactive hazardous waste disposal site, or to have it removed from the registry entirely. The site, contaminated with polychlorinated biphenyls (PCBs) from a former scrap metal operation, had been designated a Class 2 site by the Department of Environmental Conservation (DEC) since 1985 due to a significant environmental threat, triggering a complex legal and administrative history. Despite an Administrative Law Judge's recommendation for reclassification to Class 3 following a hearing, the Commissioner ultimately denied the request in October 2011, concluding that petitioner failed to demonstrate the site no longer posed a significant threat to the environment. The Commissioner's decision highlighted the presence of massive quantities of PCBs, the absence of effective cleanup measures, and evidence of contamination exceeding state standards both on-site and migrating to the adjacent Mohawk River and wetlands. The Appellate Division affirmed the Commissioner's determination, dismissing the petition and finding no jurisdictional overreach, no substantial prejudice from a five-year delay in the decision, and that the Commissioner's findings were supported by substantial evidence.

Environmental LawHazardous WastePCB ContaminationSite ReclassificationAdministrative LawArticle 78 ProceedingEnvironmental Conservation Law (ECL)Inactive Hazardous Waste Site RegistryAppellate DivisionJudicial Review
References
20
Case No. MISSING
Regular Panel Decision

Vision Environmental Services Corp. v. New York City Department of Environmental Protection

The Appellate Division confirmed a determination by the Environmental Control Board, which found petitioners (an owner and a contractor) in violation of city asbestos regulations. The violations included failure to ensure workers wore protective gloves, maintain a proper ground-fault interrupter, provide adequate shower heads in the decontamination room, and ensure the shift supervisor wore proper protective clothing. The court found substantial evidence supported the Board's determination, and affirmed that the owner was liable for the contractor's violations. The petition brought pursuant to CPLR article 78 was denied and dismissed.

Asbestos RegulationsEnvironmental ViolationsWorker SafetyProtective EquipmentOwner LiabilityContractor LiabilityAdministrative ReviewArticle 78 ProceedingSubstantial EvidenceNew York City
References
1
Case No. 034765412M
Regular Panel Decision

McAtee v. Environmental Control Board of the Department of Environmental Protection

The petitioner, Darin E McAtee, sought to annul a New York City Environmental Control Board (ECB) determination that found him in violation of Administrative Code § 28-404.1 and imposed a $4,800 fine. The violation stemmed from a window washing company hired by McAtee, whose worker lacked a rigger's license. McAtee argued that the Administrative Code section was vague as applied to nonsupervisory homeowners and that New York Labor Law preempted local laws regarding window washers. The court found that the ECB's interpretation of the statute had no rational basis, as the code's language did not apply to homeowners who neither hoisted nor supervised the work. Consequently, the court granted McAtee's petition, annulled the ECB's determination, and dismissed the notice of violation.

Workers' CompensationAdministrative LawJudicial ReviewStatutory InterpretationHomeowner LiabilityBuilding CodesRigger LicenseDue ProcessPreemptionNew York City
References
12
Case No. MISSING
Regular Panel Decision
May 14, 2014

Forest Rehabilitation Medicine PC v. Allstate Insurance

Plaintiff Forest Rehabilitation Medicine PC sued defendant Allstate to recover $3,490 for no-fault medical benefits provided to assignor Tracy Fertitta. The core issue was the medical necessity of "Calmare pain therapy" (scrambler therapy), a novel treatment. The court conducted a bench trial, hearing expert testimony from both sides. Dr. Ayman Hadhoud, for the defense, argued the treatment was not medically necessary, not cost-effective, and essentially a form of physical therapy. Dr. Jack D’Angelo, for the plaintiff, countered that the therapy, though new, had FDA approval, was used by the military, and reduced the assignor's pain levels. Applying the Frye standard, the court found the evidence regarding Calmare scrambler therapy reliable and ruled it was medically necessary for Ms. Fertitta's pain management. Consequently, judgment was awarded to the plaintiff, Forest Rehabilitation Medicine PC, for $3,490 plus attorney's fees and interest.

No-Fault InsuranceMedical NecessityCalmare Pain TherapyScrambler TherapyNovel TreatmentFrye StandardExpert TestimonyPain ManagementFDA ApprovalCervical Radiculopathy
References
14
Case No. 2017 NY Slip Op 05778 [152 AD3d 1016]
Regular Panel Decision
Aug 30, 2017

Riverkeeper, Inc. v. New York State Department of Environmental Conservation

This case involves an appeal by Riverkeeper, Inc. challenging the New York State Department of Environmental Conservation's (DEC) decision to grant SPDES and Title V permits to Danskammer Energy, LLC for a natural gas electric generating station. Riverkeeper sought annulment of the permits and a negative declaration under the State Environmental Quality Review Act (SEQRA), arguing for a public adjudicatory hearing and a new source review. The Supreme Court dismissed the applications, and the Appellate Division affirmed this judgment. The appellate court found DEC's determinations regarding the lack of need for a public hearing, compliance with thermal discharge regulations through a 'mixing zone' policy, and the non-permanent nature of the station's shutdown for new source review purposes to be rational and not arbitrary or capricious.

Environmental LawPermit RenewalSPDES PermitTitle V PermitState Environmental Quality Review ActPublic HearingNew Source ReviewWater Quality StandardsThermal DischargeClean Air Act
References
37
Case No. 2024 NY Slip Op 00599 [224 AD3d 428]
Regular Panel Decision
Feb 06, 2024

Matter of New Millennium Pain & Spine Medicine, P.C. v. Garrison Prop. & Cas. Ins. Co.

This case involves two appeals by New Millennium Pain & Spine Medicine, P.C. against Garrison Property & Casualty Insurance Company and GEICO Casualty Company. New Millennium sought to vacate master arbitration awards that denied its claims for no-fault benefits for medical services. The Supreme Court denied these applications. The Appellate Division, First Department, affirmed the Supreme Court's decisions, stating that an arbitrator's award will not be set aside unless it is irrational. The court also addressed the argument regarding a 20% wage offset in no-fault benefits, finding it unavailing under Insurance Law § 5102 (b). Ultimately, New Millennium was not entitled to attorneys' fees as it was not the prevailing party.

No-fault benefitsarbitration awardvacaturinsurance lawwage offsetappellate reviewmedical servicesno-fault policy exhaustionattorneys' feesCPLR Article 75
References
8
Case No. 2020 NY Slip Op 04896 [186 AD3d 1770]
Regular Panel Decision
Sep 03, 2020

Matter of Wen Liu v. Division of Gen. Internal Medicine, Mount Sinai Sch. of Medicine

Wen Liu, a data programming analyst, filed for workers' compensation benefits in May 2010, claiming a neck injury from a June 5, 2008 fall at work due to dizziness. The employer failed to timely file a notice of controversy, but a Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding no causal connection between the injuries and employment. The Workers' Compensation Board upheld this decision, which the claimant appealed. The Appellate Division affirmed the Board's decision, emphasizing that the employer's procedural failure did not absolve the claimant of proving a causal relationship. Substantial evidence supported the Board's rejection of the claimant's medical proof, as emergency room records contradicted her later descriptions of the incident and indicated pre-existing conditions.

Workers' CompensationCausationMedical EvidenceTimely NoticeBurden of ProofInjuryFallDizzinessNeck InjuryCarpal Tunnel Syndrome
References
7
Case No. MISSING
Regular Panel Decision

Consolidated Flooring Corp. v. Environmental Control Board

The case involves a petitioner contractor found to have violated asbestos control program regulations by the Environmental Control Board. The violation stemmed from disturbing asbestos without proper containment and protection measures. The court reviewed the determination, confirming the Board's findings. Consequently, the petitioner's request was denied, and the related CPLR article 78 proceeding was dismissed. The court emphasized that asbestos abatement regulations apply even when the presence of asbestos is not initially suspected.

asbestos controlenvironmental regulation violationcontractor liabilitypublic health and safetyworker protectionadministrative determination reviewjudicial review of agency actionArticle 78 proceedingregulatory complianceasbestos abatement activities
References
2
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