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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

Blanchard v. Katz

The case involves plaintiffs' common law fraud and Rule 10b-5 claims against defendants Harrison M. Lasky, Lon B. Rubin, and Aron B. Katz. Plaintiffs invested in a limited partnership, alleging that the defendants made false and misleading financial projections by overstating revenues and understating expenses, specifically regarding repair costs for the roof and air conditioning, and marketing/vacancy expenses. The initial complaint was dismissed for failing to plead fraud with particularity under Fed.R.Civ.P. 9(b). The amended complaint also failed to provide sufficient factual allegations to support the defendants' knowledge of the alleged misrepresentations, despite specifying some details. The court found that the plaintiffs' allegations were conclusory and lacked a minimum factual basis for scienter. Therefore, the defendants' motion to dismiss the entire complaint with prejudice was granted, including the federal securities fraud claim and the state law claims due to a lack of pendent jurisdiction.

FraudSecurities FraudRule 10b-5Pleading ParticularityFed.R.Civ.P. 9(b)Motion to DismissInsufficient AllegationsScienterLimited PartnershipFinancial Projections
References
13
Case No. MISSING
Regular Panel Decision
Jul 24, 1995

Vanscoy v. Namic USA Corp.

The plaintiff, a former junior assembler and group leader for the defendant, was terminated in October 1993 after being accused of violating company rules by discarding 'stock issues.' She alleged that her termination was a result of age and sex discrimination by her supervisor, John Sprott, and commenced an action in December 1994. The Supreme Court granted the defendant's motion to dismiss the complaint, finding that the allegations were conclusory and factually deficient. The plaintiff appealed this decision. The Appellate Division affirmed the Supreme Court's order, concluding that the plaintiff's allegations of sex and age discrimination lacked sufficient factual specificity to sustain a cause of action.

Employment DiscriminationAge DiscriminationSex DiscriminationWrongful TerminationFailure to State Cause of ActionConclusory AllegationsRespondeat SuperiorAppellate ReviewCPLR 3211(a)(7)Executive Law § 296
References
21
Case No. MISSING
Regular Panel Decision

United States v. Panepinto

Defendants Antonio Panepinto and Peter Nanfria were charged with conspiring to embezzle assets of employee welfare benefit funds, embezzling such assets, making false statements in ERISA-required documents, mail fraud, and bribing a union official. The core of the charges stemmed from their alleged creation of RO-IG Coat and Suit Corp. to perform work for non-participating manufacturers, thereby evading required contributions to employee benefit funds under a collective bargaining agreement. Defendants moved to dismiss the first ten counts, arguing that unpaid employer contributions were not 'assets' of the funds and that their actions were merely a breach of contract, not embezzlement. They also sought dismissal of the false statement and mail fraud counts and requested a Bill of Particulars, claiming insufficient factual allegations regarding RO-IG's affiliation. The court denied all defendants' omnibus motions, ruling that the underlying wage agreement established unpaid employer contributions as 'assets' of the funds and that the defendants, as fiduciaries, had converted these funds. The court also found the indictment's factual allegations sufficient concerning the relationship between the firms.

ConspiracyEmbezzlementERISAEmployee Welfare Benefit FundsMail FraudUnion Official BriberyCollective Bargaining AgreementEmployer ContributionsPlan AssetsMotion to Dismiss
References
13
Case No. MISSING
Regular Panel Decision
Dec 22, 2010

Zembiec v. County of Monroe

Plaintiff Thomas Zembiec, a deputy sheriff, sued the County of Monroe, Monroe County Sheriff's Department, Sheriff Patrick O'Flynn, and Undersheriff Gary Caiola under the Americans with Disabilities Act (ADA) and 42 U.S.C. §§ 1983 and 1985. He alleged violations of his rights stemming from events in 2008, including the unauthorized publication of his confidential medical records and retaliation for reporting misconduct within the Jail. Zembiec also challenged the denial of his N.Y. Gen. Mun. L. § 207-c benefits and orders to return to work, arguing these actions were retaliatory. Defendants moved for judgment on the pleadings, asserting insufficient factual allegations for retaliation, lack of municipal policy, and individual involvement in the alleged violations. The court dismissed the ADA claim due to Zembiec's concession of no administrative charge and found his First Amendment retaliation, due process, and civil rights conspiracy claims lacked sufficient factual support to proceed. Consequently, the court granted defendants' motion for judgment on the pleadings and denied plaintiff's cross-motion for leave to amend the complaint, deeming the proposed amendments futile.

ADASection 1983Section 1985First AmendmentRetaliationDue ProcessPrivacyConfidential Medical RecordsPublic EmployeeFitness For Duty
References
55
Case No. MISSING
Regular Panel Decision

Rose v. Goldman, Sachs & Co., Inc.

Plaintiff Deborah M. Rose filed an employment discrimination suit against Goldman, Sachs & Co., Inc. under Title VII, the Equal Pay Act, and New York State and City human rights laws, alleging sex-based disparate treatment and unequal pay. Defendant moved to dismiss the complaint for failure to state a claim. The Court found Plaintiff's allegations of sex discrimination too vague and conclusory, merely paraphrasing legal standards without specific factual support. Similarly, her Equal Pay Act claims lacked sufficient factual detail regarding "substantially equal work" with male counterparts. Consequently, the Court granted Defendant's motion to dismiss the complaint in its entirety, allowing Plaintiff thirty days to file a second amended complaint.

Employment DiscriminationTitle VIIEqual Pay ActNew York Human Rights LawNew York City Administrative CodeMotion to DismissRule 12(b)(6)Disparate TreatmentUnequal PayConclusory Allegations
References
24
Case No. MISSING
Regular Panel Decision

Bulkferts Inc. v. Salatin Inc.

The plaintiff, Bulkferts, Inc., sued Salatin and Franco Ferri, Inc., alleging a conspiracy to restrain trade and monopolize the fertilizer market under Section 1 of the Sherman Act, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). Defendants moved to dismiss the complaint or for summary judgment. The court, presided over by District Judge Robert L. Carter, denied summary judgment for the Sherman Act count (count one), finding factual questions regarding the independence of actors and the attempt to monopolize. However, counts two and three, alleging RICO violations, were dismissed because the plaintiff failed to show that defendants were engaged in a pattern of racketeering activity related to obtaining an interest in or operating an enterprise. The court also discussed the Noerr-Pennington doctrine but deferred its application due to factual questions of intent.

Antitrust LawSherman ActRICO ActConspiracyMonopolizationSummary Judgment MotionMotion to DismissNoerr-Pennington DoctrineForeign RelationsPersonal Jurisdiction
References
19
Case No. MISSING
Regular Panel Decision

Susko v. Romano's MacAroni Grill

Plaintiff Karen M. Susko sued her former employer, Romano's Macaroni Grill, alleging sexual harassment and retaliation under Title VII. Susko reported multiple incidents of alleged sexual harassment by a co-worker, Daniel Fabrizio, including touching, attempted kissing, patting, and threats of physical violence, which occurred between October 1996 and March 1997. Although Romano's responded by warning and eventually terminating Fabrizio, Susko claims the company failed to take adequate action to prevent further harassment. Romano's moved for partial summary judgment on the sexual harassment claim, arguing that the incidents did not constitute a hostile work environment and that their response was reasonable. The court denied the motion, finding sufficient factual support for a hostile work environment claim and a remaining factual issue regarding the reasonableness of Romano's employer response.

Sexual HarassmentHostile Work EnvironmentTitle VIISummary JudgmentEmployer LiabilityCo-worker HarassmentRetaliation ClaimFederal Rules of Civil Procedure Rule 56DiscriminationWorkplace Harassment Policy
References
17
Case No. MISSING
Regular Panel Decision

Cowell v. Utopia Home Care, Inc.

Plaintiff Shenithia Cowell filed a lawsuit against Utopia Home Care, Inc., alleging violations of the Fair Labor Standards Act (FLSA) and New York labor laws for unpaid overtime and pre-shift work. Cowell, a Home Health Aide, claimed she regularly worked over 50 hours weekly and dedicated a significant portion of her time to general household tasks, arguing against the applicability of the companionship services exemption. The defendant sought to dismiss the claims and strike certain parts of the complaint, arguing insufficient factual pleading. The court denied the motion to dismiss the FLSA and breach of contract claims, finding sufficient factual allegations to support Cowell's contentions regarding non-exempt work and uncompensated time. However, the motion to strike references to other litigations and deposition testimony was granted, and Plaintiff was instructed to submit an amended complaint.

Fair Labor Standards ActFLSANew York Labor LawWage and HourOvertime PayHome Health AideCompanionship ExemptionMotion to DismissRule 12(b)(6)Rule 12(f)
References
13
Case No. MISSING
Regular Panel Decision
Mar 02, 2016

Zaldivar v. JMJ Caterers, Inc.

The plaintiff, Orbin Zaldivar, a former dishwasher and food preparer, filed a wage and hour action against JMJ Caterers, Inc. d/b/a The Metropolitan, Michael Giamalvo, and Janender Narang, alleging violations of the FLSA and NYLL for unpaid overtime. Zaldivar claims the defendants used a 'two punch card' system to avoid paying overtime by recording regular hours on one card and overtime hours (paid in cash at the regular rate) on a second card. He moved for conditional certification of a collective action, asserting that other kitchen staff, servers, and busboys were subjected to the same unlawful policy. Despite defendants' opposition challenging the factual allegations and the scope of the class, the Court granted the motion for conditional certification, finding that the plaintiff made a modest factual showing of a common policy that violated the law and that other employees were similarly situated. The Court conditionally certified a class of all servers, busboys, and kitchen workers employed by The Metropolitan from December 28, 2012, to the present.

Overtime payFLSANYLLwage and hourcollective actionconditional certificationpunch card systemunpaid wagessimilarly situated employeesemployment law
References
71
Case No. 2016 NY Slip Op 02654
Regular Panel Decision
Apr 06, 2016

Matter of Dayannie I. M. (Roger I. M.)

The Appellate Division, Second Department, affirmed a Family Court order which found Roger I.M. abused and neglected his daughter, Eyllen I.M., and derivatively abused his other children: Dayannie I.M., Hillary I.M., Keyri I.M., and Jackzenny I.M. The court found that the Suffolk County Department of Social Services presented sufficient evidence, including Eyllen's consistent out-of-court statements, expert testimony, and Roger I.M.'s written confession of sexual abuse. The Appellate Division upheld the Family Court's credibility assessment, rejecting the appellant's and the children's mother's disputes. The court also affirmed the derivative abuse findings for the other children, noting that a child's recantation does not necessarily invalidate prior abuse allegations, especially when pressured or if there is expert testimony indicating a false recantation.

Child AbuseChild NeglectFamily LawAppellate ReviewSexual AbuseCredibilityRecantationExpert TestimonyParental RightsSuffolk County Family Court
References
26
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