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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

Northeastern Stud Welding Corp. v. Webster

A New York corporation, previously certified as a woman-owned business enterprise, was denied recertification in 1992, leading to a CPLR article 78 proceeding challenging the determination. The court rejected claims of inadequate explanation and procedural irregularities, finding the Hearing Officer's rationale, adopted by the Executive Director, provided sufficient basis for judicial review, and the hearing procedures were within discretion. Substantial evidence supported the denial of recertification, as control over petitioner's daily operations, including critical decisions on bidding, marketing, sales, purchasing, hiring, and field supervision, was shared between the sole shareholder Jean Zelezniak, her husband, and another employee. This shared control, coupled with Zelezniak's lack of expertise and the company's formation structure, led to the conclusion that the business was family-owned and not independently controlled by Zelezniak as required by regulations for woman-owned business enterprise status. Consequently, the determination to deny recertification was confirmed, and the petition was dismissed.

Woman-owned business enterpriseRecertification denialCPLR Article 78Administrative reviewBusiness controlShareholder controlFamily-owned businessProcedural due processJudicial reviewExecutive Law
References
4
Case No. 03-13-00077-CV
Regular Panel Decision
Feb 25, 2015

Texas State Board of Examiners of Marriage and Family Therapists Charles Horton in His Official Capacity Sandra DeSobe in Her Official Capacity, and Texas Association of Marriage // Cross-Appellant,Texas Medical Association v. Texas Medical Association// Texas State Board of Examiners of Marriage and Family Therapists Charles Horton in His Official Capacity Sandra DeSobe in Her Official Capacity, and Texas Association of Marriage

The amicus brief, submitted by The Association of Marital and Family Therapy Regulatory Boards (AMFTRB), urges the Third Court of Appeals to grant en banc reconsideration and reverse a panel's decision that found 22 TEX. ADMIN CODE §801.42(13) invalid. The brief argues that Licensed Marriage and Family Therapists (LMFTs) are fully qualified, trained, and tested to perform diagnostic assessments within their therapeutic role. It asserts that diagnosis alone, in the context of marriage and family therapy, does not constitute the practice of medicine under the Texas Medical Practice Act, and preventing LMFTs from performing these assessments would effectively prohibit their professional practice and create a shortage of mental health professionals in Texas. The AMFTRB also highlights that the legislature did not intend for LMFTs to be supervised by physicians and that the structure of the Occupations Code supports marriage and family therapy as a stand-alone profession. Additionally, the brief questions the qualification of the Texas Medical Association's expert witness due to prior ethical lapses.

Marriage and Family TherapyDiagnostic AssessmentMedical Practice ActOccupations CodeRegulatory BoardsLicensureScope of PracticeMental Health ServicesTexasAccreditation
References
9
Case No. 01-14-00687-CV
Regular Panel Decision
Mar 13, 2015

the Better Business Bureau of Metropolitan Houston, Inc., the Better Business Bureau of Metropolitan Houston Education Foundation, Dan Parsons, Chris Church, Church Enterprises, Inc., Gary Milleson, Ronald N. McMillan, D' Artagnan Bebel, Mark Goldie, Cha v. John Moore Services, Inc. and John Moore Renovation, LLC

This document contains two responses from John Moore Services, Inc. and John Moore Renovation, LLC. The primary document, filed March 13, 2015, is a response to the Appellants' (Better Business Bureau et al.) objections to consolidation of related cases for submission. John Moore Services, Inc. and John Moore Renovation, LLC (Appellees) advocate for consolidation, asserting it would serve justice and efficiency by resolving all issues in a single judgment and prevent further confusion arising from separate appeals. The embedded document, filed June 12, 2014, is a response and objection to the Better Business Bureau's motion for attorneys' fees, court costs, expenses, and sanctions. John Moore argues that the requested fees are not reasonable or necessary, that the issue of reasonableness requires a jury trial, and that the supporting evidence (Elkin Affidavit and invoices) is legally insufficient and conclusory. Furthermore, John Moore contends that awarding fees at this stage would be neither just nor equitable, given the ongoing viable claims, and requests the court to deny the motion for fees, sustain their objections, grant their motion to consolidate, and compel discovery responses.

LitigationAttorney FeesCase ConsolidationAnti-SLAPP StatuteTexas Civil ProcedureAppellate PracticeJury TrialEvidence ObjectionsDiscovery DisputesLegal Fees Reasonableness
References
27
Case No. MISSING
Regular Panel Decision

Ewald v. Wornick Family Foods Corp.

Deborah Ewald sued her employer, Wornick Family Foods, and co-worker Oscar Alonzo, alleging sexual harassment, retaliatory discharge, assault and battery, and intentional infliction of emotional distress. The trial court entered a default judgment against Alonzo and granted summary judgment in favor of Wornick. Ewald appealed the summary judgment. The appellate court affirmed the summary judgment concerning intentional infliction of emotional distress and retaliatory discharge, and limited compensatory damages for lost wages to the date the business closed. However, the court reversed and remanded the summary judgment on the claims of sexual harassment and assault and battery against Wornick, finding that material factual disputes existed.

Sexual HarassmentRetaliatory DischargeAssault and BatteryIntentional Infliction of Emotional DistressSummary Judgment AppealEmployment DiscriminationHostile Work EnvironmentQuid Pro QuoRespondeat SuperiorTexas Human Rights Act
References
10
Case No. 2017-278 Q C
Regular Panel Decision
Feb 08, 2019

Flores v. A & A Family Beverage, Inc.

The Appellate Term, Second Department, affirmed an order denying the defendants' motion for summary judgment. Plaintiff Carlos Flores sought recovery for injuries sustained while unloading a truck owned by A & A Family Beverage, Inc. Defendants argued that Flores's sole remedy was workers' compensation benefits. The Civil Court found triable issues of fact regarding whether an employer-employee relationship existed between Flores and A & A, which would determine if workers' compensation was the exclusive remedy. The appellate court concurred, noting that the nature and extent of A & A's control over Flores needed to be determined by the trier of fact, and also clarified that Flores was not an employee of A & A under Workers' Compensation Law § 2 (4) as he was not a driver.

workers' compensationemployer-employee disputesummary judgment denialappellate reviewlabor lawpersonal injury claimexclusive remedytrucking accidentfactual disputerespondent vs appellant
References
1
Case No. MISSING
Regular Panel Decision

J.A. Marshall Sheet Metal & Roofing, Inc. v. State of New York

This CPLR article 78 proceeding reviews a determination by the Department of Economic Development denying the petitioner's request for certification as a woman-owned business enterprise. The petitioner, a New York corporation involved in sheet metal construction, was deemed ineligible. The court found that the respondent misinterpreted its rules by focusing on when the owner, Eva Marshall, acquired her interest rather than at the time of the application. The determination was annulled, and the matter remitted to the respondent for reconsideration using the appropriate eligibility factors. A concurring and dissenting opinion argued for annulling the determination due to lack of substantial evidence and irrationality, without remittal.

woman-owned business enterpriseWBE certificationCPLR Article 78administrative revieweligibility criteriastandard of reviewremittalsubstantial evidenceNew York laweconomic development
References
4
Case No. 2021 NY Slip Op 00744 [191 AD3d 1363]
Regular Panel Decision
Feb 05, 2021

Lemiszko v. Mosovich 2014 Family Trust

Plaintiff Troy C. Lemiszko commenced an action seeking damages for injuries sustained after falling from a ladder on premises owned by Mosovich 2014 Family Trust. Defendant AAA Contracting, LLC appealed an order denying its pre-answer motion to dismiss Labor Law claims and the Trust's cross-claim for contractual indemnification. The Appellate Division affirmed the lower court's order, rejecting AAA Contracting, LLC's collateral estoppel argument, finding that a prior workers' compensation determination did not preclude plaintiff's Labor Law recovery. The court also upheld the denial of dismissal for the contractual indemnification cross-claim due to insufficient documentary evidence.

Collateral EstoppelLabor Law ClaimsContractual IndemnificationWorkers' Compensation BoardLadder FallPersonal InjuryAppellate ReviewMotion to DismissGeneral Contractor LiabilityUninsured Employer
References
13
Case No. 2019 NY Slip Op 01273 [169 AD3d 1187]
Regular Panel Decision
Feb 21, 2019

Family & Educ. Consultants, LLC v. New York State Ins. Fund

Family & Educational Consultants, LLC, doing business as Partnership for Education, sought to file a late notice of claim against the New York State Insurance Fund to recover $250,000 in workers' compensation premiums. The claimant asserted that its therapists were independent contractors, not employees, and thus the premiums were improperly calculated. While the Court of Claims initially granted permission for the late filing, the Appellate Division, Third Department, reversed this decision. The appellate court held that the Court of Claims lacked subject matter jurisdiction over the core issue, which involved challenging an agency's determination of employee classification. It clarified that such determinations are properly reviewed through a CPLR article 78 proceeding in Supreme Court, which could also provide incidental relief for overpayments.

Workers' Compensation PremiumsIndependent ContractorsSubject Matter JurisdictionCourt of ClaimsAgency DeterminationCPLR Article 78Late Notice of ClaimAppellate ReviewEmployee ClassificationInsurance Disputes
References
9
Case No. 03-22-00420-CV
Regular Panel Decision
Mar 29, 2024

Stephanie Muth, in Her Official Capacity as Commissioner of the Texas Department of Family and Protective Services, and the Texas Department of Family and Protective Services v. PFLAG, Inc. and Adam Briggle and Amber Briggle, Individually and as Parents and Next Friends of M.B., a Minor

This appeal concerns temporary injunctions issued against the Texas Department of Family and Protective Services (DFPS) and its Commissioner. The injunctions prevent DFPS from investigating parents for child abuse solely based on providing gender-affirming medical care to minors, a policy adopted following an Attorney General opinion and Governor's directive. The Court affirmed the injunctions, finding that the appellees (families with transgender children and PFLAG, Inc.) had standing, their claims were ripe and not moot, and sovereign immunity was waived. The court concluded that DFPS's policy constituted an invalid rule under the Administrative Procedure Act, adopted without proper procedures, and interfered with fundamental parental and children's constitutional rights.

Gender-affirming careChild abuse investigationAdministrative Procedure ActParental rightsConstitutional rightsStandingRipenessMootnessSovereign immunityTexas law
References
28
Case No. MISSING
Regular Panel Decision

Skyline Specialty, Inc. v. Gargano

Petitioner, a New York-incorporated distributor of specialized equipment, sought certification as a woman-owned business enterprise (WOBE). The application, submitted by sole shareholder Nancy Struzenski, was denied because petitioner failed to demonstrate independent operation as required by state regulations. Petitioner challenged this determination via a CPLR article 78 proceeding, arguing that the respondent agency misinterpreted its own regulations and that the decision lacked substantial evidence. The court upheld the respondent's interpretation of the regulations as reasonable and found ample evidence, including petitioner's deep financial and operational ties to Environmental Products and Services, Inc. (EPS), to support the finding of non-independence. The court further dismissed petitioner's claims of procedural flaws during the initial investigation. Consequently, the determination to deny WOBE certification was confirmed, and the petition was dismissed.

Woman-Owned Business EnterpriseCertification DenialIndependent OperationAdministrative LawCPLR Article 78Judicial ReviewRegulatory InterpretationSubstantial EvidenceBusiness InterdependenceCorporate Structure
References
6
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