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

Case No. 2024 NY Slip Op 00187
Regular Panel Decision
Jan 17, 2024

McGlynn v. Burns & Harris, Esq.

In this legal malpractice action, William McGlynn sued attorneys Burns & Harris, Esq., and Allison R. Keenan for failing to notify insurance carriers in a prior personal injury case, preventing him from collecting a judgment. The defendants moved for summary judgment, arguing judicial estoppel applied due to McGlynn's workers' compensation claim with an inconsistent injury theory. The Supreme Court granted summary judgment to the defendants and denied McGlynn's cross-motion to strike their answer for spoliation of evidence. On appeal, the Appellate Division, Second Department, reversed the summary judgment for the defendants, finding that multiple proximate causes for injuries are possible and the judicial estoppel doctrine might not preclude recovery. The court affirmed the denial of McGlynn's cross-motion for spoliation of evidence, determining he failed to show an obligation to preserve the evidence or a culpable state of mind.

legal malpracticesummary judgmentjudicial estoppelspoliation of evidenceproximate causeinsuranceappellate reviewattorney's dutycausationdamages
References
15
Case No. ADJ3395089 (STK 0177203) ADJ2229380 (STK 0196966)
Regular
Apr 20, 2009

ROBERT MILLER vs. CAROL-CARTER DESIGN & CONSTRUCTION, STATE COMPENSATION INSURANCE FUND

The Appeals Board initially proposed sanctions against attorney Michael Linn, Esq., mistakenly listing the service date for his objection period. Despite Mr. Linn filing objections on March 4th and April 6th/9th, which were not technically untimely based on the actual service dates, the Board granted him further opportunities to respond. Ultimately, the Board extended the deadline to May 20, 2009, for Mr. Linn to file any additional objections to the proposed $\$ 500.00$ monetary sanction, citing potential service discrepancies and aiming to avoid any appearance of prejudice.

Workers' Compensation Appeals Boardmonetary sanctionsnotice of intentiondue processservice date discrepancyobjection to sanctionsadditional timeCalifornia Code of Regulationsfurlough directivesstate holidays
References
2
Case No. Index No. 500294/2018 Appeal No. 16497-16498-16499 Case No. 2022-00247, 2022-00958, 2022-01285, 2022-02741
Regular Panel Decision
Mar 16, 2023

Matter of Edgar V.L.

Alison L. initiated proceedings to appoint an Article 81 guardian for her incapacitated brother, Edgar V.L., alleging financial exploitation by Rachida Naciri, who later married Edgar and entered into a prenuptial agreement. Judy S. Mock was appointed temporary guardian and Gary Elias as counsel. Concerns arose when Mock and Elias failed to investigate the marriage and financial transactions. A special guardian, Lissett C. Ferreira, was subsequently appointed to investigate these matters. The Supreme Court removed Mock and discharged Elias due to conflicts of interest and dereliction of fiduciary duties, appointing successor guardian and counsel. The Appellate Division affirmed these orders, ruling that Alison L. had standing and that the court's actions regarding the appointments and removals were a proper exercise of discretion. The court also dismissed an appeal as moot.

Incapacitated personGuardianshipFinancial exploitationPrenuptial agreementFiduciary dutiesAttorney misconductSpecial guardianArticle 81Due processAppellate review
References
14
Case No. MISSING
Regular Panel Decision

Bloom v. Hensel

Justice Peradotto dissents from the majority's decision, arguing that the Supreme Court correctly granted summary judgment in favor of defendant Thomas D. Calandra, Esq. Peradotto asserts that plaintiffs failed to establish an attorney-client relationship with Calandra, as there was no explicit undertaking of tasks by Calandra for the plaintiffs, and a unilateral belief of representation is insufficient. The dissent highlights that only defendant Rene F. Hensel, Esq.'s signature appeared on pleadings, and Hensel admitted the draft pleadings were his work product. Furthermore, the dissent concludes that there is no evidence to support a vicarious liability claim based on an an informal fee-sharing agreement between Calandra and Hensel, as Hensel could not recall such an agreement for this specific personal injury action. Therefore, Peradotto would affirm the lower court's order dismissing the complaint against Calandra.

Attorney-Client RelationshipSummary JudgmentDissenting OpinionAppellate ReviewProfessional NegligenceVicarious LiabilityFee-Sharing AgreementPersonal Injury ActionLegal RepresentationUnilateral Belief
References
3
Case No. MISSING
Regular Panel Decision
Nov 30, 2010

Cambridge Integrated Services Group, Inc. v. Faber

The Supreme Court, New York County, affirmed a motion denying summary judgment for defendants Norman L. Faber, Esq., and Law Office of Norman L. Faber, Esq. The case involves an action by the administrator for Fremont, a workers' compensation carrier, to enforce a lien against settlement proceeds. Donald Pressley, a New York City resident, was injured in a tractor-trailer accident and received New Jersey workers' compensation benefits from Fremont. Pressley later settled a legal malpractice action against his initial attorney, Paul A. Shneyer, for failing to timely commence a personal injury lawsuit, with Faber representing Pressley in that action. The current action concerns whether New Jersey law applies to the lien against the malpractice recovery, with the court concluding that New Jersey law is applicable and the action is not time-barred.

Summary JudgmentWorkers' Compensation LienLegal MalpracticeSettlement ProceedsConflict of LawsNew Jersey LawNew York Public PolicyStatute of LimitationsAccrual of ClaimDouble Recovery
References
5
Case No. MISSING
Regular Panel Decision

Stockschlaeder & McDonald, Esqs. v. Kittay (In Re Stockbridge Funding Corp.)

Appellant law firm Stockschlaeder & McDonald appealed an order from the United States Bankruptcy Court for the Southern District of New York, which found them guilty of civil contempt and imposed sanctions for failing to turn over debtor's documents and violating an automatic stay. The District Court affirmed the bankruptcy court's finding of civil contempt, citing clear and convincing evidence of the firm's noncompliance and lack of diligence regarding the turnover orders. However, the court vacated the civil contempt sanctions, reasoning that coercive sanctions cannot be applied after compliance, and the fixed fine effectively functioned as a criminal contempt sanction requiring due process protections not met. The District Court also upheld the bankruptcy court's determination that Stockschlaeder & McDonald violated the automatic stay by improperly releasing and recording mortgage assignments post-petition. Consequently, the order was affirmed in part and vacated in part.

Civil ContemptBankruptcy AppealAutomatic Stay ViolationSanctionsTurnover OrderLaw Firm LiabilityDebtor's EstateCoercive SanctionsCriminal ContemptDue Process
References
27
Case No. VNO 0397500, VNO 0538311
Regular
Sep 18, 2007

Rachel Akman vs. Ronald Faulk, Esq., Uninsured Employers Benefits Trust Fund

The Workers' Compensation Appeals Board granted reconsideration because the defendant, Ronald Faulk, was denied due process by not being allowed to cross-examine the disability evaluator. The Board found that defendant's objection was timely filed under Code of Civil Procedure section 1013, extending the response time by five days. Therefore, the prior award was rescinded and the case returned to the trial level for further proceedings, including the cross-examination of the evaluator.

Workers Compensation Appeals BoardRonald Faulk EsqUninsured Employers Benefits Trust FundJoint Findings and Awardindustrial injuriesbilateral upper and lower extremitiesbackneckknees72% permanent disability
References
1
Case No. 2018 NY Slip Op 04484
Regular Panel Decision
Jun 15, 2018

Murray v. Lipman

Plaintiff commenced a legal malpractice action seeking damages based on defendants' representation of her in workers' compensation matters. Defendants moved for summary judgment, which the Supreme Court granted, and the Appellate Division subsequently affirmed this decision. Defendants successfully demonstrated that the plaintiff could not establish a necessary element of her legal malpractice claim. The plaintiff failed to provide an expert's affidavit, which was crucial for delineating the appropriate standard of professional care and skill expected from the defendants, thereby failing to raise a genuine issue of fact regarding their adherence to this standard.

Legal MalpracticeWorkers' CompensationSummary JudgmentAppellate ReviewStandard of CareExpert AffidavitProfessional Conduct RulesAffirmationErie County Supreme CourtAttorney Representation
References
6
Case No. 210 AD3d 1494
Regular Panel Decision
Nov 18, 2022

Matter of Sloma v. Saya

The Appellate Division, Fourth Department, reversed an order of the Family Court, Onondaga County, which had dismissed a father's petition to modify a custody arrangement. The appeal was brought by the Attorney for the Child (AFC), who was found to have standing. The appellate court determined that the child received ineffective assistance of counsel during the Family Court proceedings. The AFC at trial failed to zealously advocate the child's position, did not cross-examine certain witnesses, and presented testimony and opinions that undermined the child's wishes for a change in custody. Consequently, the petition was reinstated, and the matter was remitted to Family Court for a new trial.

Custody ModificationIneffective Assistance of CounselAttorney for the ChildFamily Court ActAppellate ReviewChild's Best InterestsParental RightsStanding to AppealJudicial DiscretionRemittal
References
11
Case No. MISSING
Regular Panel Decision

Mandell v. Mandell

This matrimonial action addresses the defendant's motion to disqualify the plaintiff's counsel, Ellen Jancko-Baken, Esq. The defendant argued that counsel's participation in a

Matrimonial LawCollaborative LawAttorney DisqualificationSettlement NegotiationsParticipation AgreementContract EnforceabilityConfidential InformationProfessional EthicsDomestic Relations LawCPLR
References
20
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