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

Case No. CA 11-02000
Regular Panel Decision
Nov 09, 2012

OLSEN, MICHAEL JAMES v. KOZLOWSKI, SHIRLEY F.

Plaintiff Michael James Olsen commenced a Labor Law and common-law negligence action seeking damages for injuries sustained from falling during residence construction. Plaintiff moved for partial summary judgment on liability under Labor Law § 240 (1), while defendants Louis F. Kozlowski and Shirley F. Kozlowski (property owners) cross-moved for summary judgment dismissing the complaint. The Supreme Court granted dismissal against Louis F. Kozlowski and denied dismissal against Shirley F. Kozlowski, also granting plaintiff's motion against Shirley F. Kozlowski. The Appellate Division modified the order, denying plaintiff's motion in its entirety, finding a triable issue of fact regarding whether Shirley F. Kozlowski was an officer of the employer, which could bar the action under Workers' Compensation Law § 29 (6).

Personal InjuryLabor LawPremises LiabilitySummary JudgmentAppellate ReviewWorkers' CompensationOfficer LiabilityEmployer ImmunityConstruction AccidentFall from Height
References
20
Case No. 2019 NY Slip Op 01310 [169 AD3d 549]
Regular Panel Decision
Feb 21, 2019

Matter of Samantha F. (Edwin F.)

The Appellate Division, First Department, affirmed an order from the Family Court, Bronx County, which found that respondent Edwin F. sexually abused the eldest child and derivatively neglected his other children. The appeal was found to be properly taken from an appealable order. The court determined that the finding of sexual abuse was supported by a preponderance of the evidence, including the child's detailed out-of-court statements corroborated by the mother's testimony, a sibling's statements, and expert testimony. The sexual abuse also supported the finding of derivative neglect, as it demonstrated the respondent's defective understanding of parental obligations, placing other children at substantial risk.

Child NeglectSexual AbuseDerivative NeglectAppellate ReviewFamily Court ProceedingsCorroborated TestimonyExpert Witness TestimonyParental ObligationsRisk AssessmentChild Protection Services
References
5
Case No. MISSING
Regular Panel Decision
Jul 12, 1984

In re Kim F.

The Family Court, New York County, issued a final order of disposition adjudicating 15-year-old Kim F. a juvenile delinquent for acts constituting arson in the second degree and criminal mischief in the fourth degree. This adjudication followed a guilty plea entered in Rockland County Family Court concerning an incident where Kim F. intentionally started a fire at a mental health center. The appellate court reversed this order, vacated the guilty plea, and remanded the case to the Rockland County Family Court for further proceedings. The reversal was based on several procedural errors, including the failure to notify Kim F.'s parents, inadequate advisement of her rights to remain silent and counsel, and the lack of an admission of intentional damage, which is a required element of the crimes charged. The court emphasized the necessity for both the minor and a parent to understand and waive such fundamental rights before a guilty plea can be accepted.

Juvenile DelinquencyArson Second DegreeCriminal Mischief Fourth DegreeGuilty PleaParental NotificationRight to CounselRight to Remain SilentDue ProcessVacated PleaRemand
References
6
Case No. MISSING
Regular Panel Decision

In re Peter F.

This case involves an appeal from an order of the Family Court of Ulster County, which terminated respondent's parental rights over his son, Peter F., on the grounds of abandonment pursuant to Social Services Law § 384-b. The respondent, Peter F.'s father, had a history of sexual abuse and neglect towards Peter's older sister, leading to supervised visitation with Peter and eventually Peter's placement in foster care. The petitioner, a social services agency, initiated proceedings after alleging respondent failed to plan for Peter's return, visit the child, or keep the agency informed of his whereabouts. The Family Court found clear and convincing evidence of abandonment during the six months prior to the petition's filing, as respondent made no attempts to contact the petitioner, and that he was not discouraged from doing so. The Appellate Division affirmed this decision, rejecting respondent's argument that petitioner bore the burden to prove lack of good cause for non-contact. The court reiterated that once abandonment is proven by the petitioner, the burden shifts to the respondent to demonstrate an inability to maintain contact or being prevented/discouraged from doing so, a burden the respondent failed to meet despite various claims of calling the caseworker, address changes, and a hernia operation. The Appellate Division found the Family Court's credibility determinations were well-supported by the record.

Parental Rights TerminationChild AbandonmentSocial Services LawAppellate ReviewFamily Court JurisdictionUlster CountyFoster CareChild WelfareBurden of ProofCredibility Determinations
References
11
Case No. 2018 NY Slip Op 07122 [165 AD3d 1108]
Regular Panel Decision
Oct 24, 2018

Matter of Alexandria F. (George R.)

This case involves consolidated proceedings concerning the alleged abuse and neglect of three children, Alexandria F., Adalila R., and George W.R., by George R. The Family Court, Nassau County, found George R. severely abused Alexandria F. and derivatively abused Adalila R. and George W.R., also finding neglect of all three children. Additionally, the Family Court denied a petition for custody and access filed by Adalila R.-S. On appeal, the Appellate Division, Second Department, modified the Family Court's order by deleting the 'severe' designation from the abuse finding regarding Alexandria F., as George R. was not her legal parent at the time. The court affirmed the findings of abuse against Alexandria F. and derivative abuse against Adalila R. and George W.R. Crucially, the Appellate Division disagreed with the Family Court's decision not to treat George R. as the father of Adalila R. and George W.R., citing formal judicial admissions by DSS. Consequently, the matter was remitted to the Family Court for further dispositional proceedings concerning Adalila R. and George W.R., including a re-evaluation of reunification efforts and the appropriateness and duration of protection orders. The denial of Adalila R.-S.'s custody and access petition was affirmed.

Child abuseChild neglectDerivative abuseParental rightsPaternityOrders of protectionCustody and accessFamily Court ActAppellate reviewRemittal
References
18
Case No. MISSING
Regular Panel Decision

F.H. Cobb Co. v. New York State Teamsters Conference Pension & Retirement Fund

F.H. Cobb Co., a subsidiary of Super Food Services Inc., filed an action seeking a declaration of non-liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) concerning withdrawal liability to the New York State Teamsters Conference Pension and Retirement Fund. The MPPAA retroactively imposed liability for employers withdrawing on or after April 29, 1980. F.H. Cobb had ceased its primary wholesale distribution business by March 8, 1980, and retained a minimal workforce for only phase-out activities until May 16, 1980, with final pension contributions in May 1980. The court analyzed whether this constituted a 'complete withdrawal' prior to the MPPAA's effective date, concluding that the phase-out work did not negate the earlier cessation of covered operations. Consequently, the court granted summary judgment for the plaintiffs, declaring F.H. Cobb's non-liability under the MPPAA's withdrawal provisions.

MPPAAwithdrawal liabilitymultiemployer pension plancessation of operationssummary judgmentretroactive legislationpension contributionsphase-out workemployer obligationsplan funding
References
9
Case No. 2022 NY Slip Op 02058 [203 AD3d 597]
Regular Panel Decision
Mar 24, 2022

Matter of Kyng F. (Kareem F.)

The Family Court denied the respondent father's motions under Family Court Act §§ 1028 and 1061 to have the subject child released to him or for unsupervised visitation. The court found a sound and substantial basis in the record that the child would face imminent risk of harm if returned to the father's care, citing domestic violence against the nonrespondent mother in the child's presence and the father's aggressive and uncooperative behavior during supervised visits and dealings with the agency. Despite mental health treatment, the father refused anger management referrals and lacked insight. The Appellate Division, First Department, unanimously affirmed the Family Court's order, concluding that the father continued to act aggressively during supervised visits and did not show good cause for modifying the release order to allow unsupervised visits.

Child ProtectionParental RightsDomestic ViolenceChild NeglectVisitation RightsFamily Court ActAppellate ReviewImminent HarmMental HealthAnger Management
References
4
Case No. 2018 NY Slip Op 06836
Regular Panel Decision
Oct 11, 2018

Matter of Haven v. F & F Custom Constr. Inc.

This case involves an appeal by Troy Haven following a work-related accident that resulted in the amputation of multiple fingers on his right hand. The Workers' Compensation Board awarded benefits based on a 42% schedule loss of use (SLU) of his right hand, calculated using the 2012 New York State Guidelines and accounting for "loading." Claimant sought a higher SLU, but the Board rejected his physician's opinion. The Appellate Division affirmed the Board's decision, concluding that the finding of a 42% SLU was consistent with medical evidence and supported by substantial evidence.

Schedule Loss of UseFinger AmputationPermanent ImpairmentMedical GuidelinesLoading (Workers' Compensation)Conflicting Medical OpinionsAppellate ReviewWorkers' Compensation BenefitsMedical EvidenceThird Department
References
4
Case No. MISSING
Regular Panel Decision
Jun 03, 1976

In re Louis F.

This proceeding was initiated by foster parents under Social Services Law section 392 to review the foster care status of the child Louis F., aiming to free him for adoption. Respondents, the Department of Social Services, Catholic Home Bureau, and the natural mother, sought to continue foster care, with the agency planning for the child's discharge to the natural mother. The foster parents moved for prehearing disclosure of various records related to the child and his natural parents, which the Family Court denied for lack of sufficient necessity. The Appellate Division affirmed this denial. The court reiterated that while foster parents, as parties in a foster care review, may obtain disclosure upon a proper showing of necessity coupled with in camera viewing by the Family Court, in this instance, after its own appellate in camera review, it found no abuse of discretion in the Family Court's decision.

Foster CareChild WelfareSocial Services LawDisclosureIn Camera InspectionFamily CourtAppellate ReviewBest Interest of the ChildParental RightsAdoption Proceedings
References
1
Case No. ADJ1715257
Regular
Dec 10, 2010

BYRON BREAULT vs. F MCLINTOCKS SALOON, ZENITH INSURANCE COMPANY

The Workers' Compensation Appeals Board granted reconsideration and rescinded the prior award, finding the record inadequate to support the finding of 100% permanent disability. The Board noted due process concerns due to the inadequate record and the WCJ's lack of specific evidentiary support for the decision. The case was returned to the trial level for further proceedings to create a proper record and address vocational evidence concerning earning capacity. The WCJ must ensure all evidence is formally offered and ruled upon, and the decision must be based on specific evidence, not personal opinion.

Petition for ReconsiderationGood Cause to ReopenPermanent Disability RatingVocational Rehabilitation ExpertDue ProcessInadequate RecordSub Rosa VideoSubstantial EvidenceTotal Loss of Earning CapacityFuture Earning Capacity
References
6
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