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

Case No. ADJ4227582
Regular
Nov 18, 2011

BOBBY CLEMENTS vs. GEORGE REED, INC., TRISTAR RISK MANAGEMENT

This case involves an applicant seeking removal of a Workers' Compensation Judge (WCJ) after an order compelling disclosure of specific records. The applicant claimed bias, Fifth Amendment privilege against self-incrimination, and privacy rights for corporate records. The Appeals Board denied the petition, clarifying that removal requires more than disagreement with a ruling and that the Fifth Amendment privilege is waived when a party initiates litigation and the requested information is relevant to their claim. The Board found no evidence of bias and ruled that the applicant could not use the privilege to obstruct relevant discovery essential for the defendant's defense.

Petition for RemovalWCJ biasFifth Amendmentself-incriminationevidentiary privilegespatient-litigant exceptionwaiverdiscoveryadministrative law judgeworkers' compensation
References
9
Case No. MISSING
Regular Panel Decision

United States v. Private Sanitation Industry Ass'n of Nassau/Suffolk, Inc.

The United States filed a civil RICO action against Salvatore Avellino, alleging racketeering activity related to solid waste collection on Long Island, including extortion, bribery, and coercion against rival carters. Avellino had previously pleaded guilty to coercion and conspiracy to commit bribery in state court. The government moved for partial summary judgment. Avellino cross-moved to stay the civil proceedings pending grand jury investigations, citing his Fifth Amendment privilege against self-incrimination. The court denied the stay, emphasizing that pre-indictment stays are generally disfavored and that the public interest in resolving corruption in the solid waste industry outweighs Avellino's interest in avoiding the Fifth Amendment dilemma, especially given his prior invocations of the privilege. The court granted Avellino 20 days to respond to the government's summary judgment motion.

RICORacketeeringCivil RICOOrganized CrimeSolid Waste ManagementExtortionBriberyCoercionFifth Amendment PrivilegeStay of Civil Proceedings
References
17
Case No. 2020 NY Slip Op 07121 [188 AD3d 1292]
Regular Panel Decision
Nov 25, 2020

Villada v. 452 Fifth Owners, LLC

The plaintiff, Carlos Villada, was allegedly injured while working on a roof demolition project at property owned by 452 Fifth Owners, LLC. He was injured when a wheeled dumpster he was pulling up a plywood ramp tipped over. Villada commenced an action against 452 Fifth Owners, LLC, alleging common-law negligence and a violation of Labor Law § 200. The Supreme Court denied 452 Fifth's motion for summary judgment dismissing these causes of action. On appeal, the Appellate Division, Second Department, reversed the Supreme Court's order, granting 452 Fifth's motion for summary judgment. The court found that 452 Fifth established, prima facie, that it did not create or have actual or constructive notice of the dangerous condition and did not have the authority to supervise or control the work. The cross-appeal by CBRE, Inc. was dismissed.

Personal InjuryRoof DemolitionSummary JudgmentCommon-Law NegligencePremises LiabilityWorkplace SafetyAppellate ReversalLabor Law ComplianceDangerous ConditionSupervision and Control
References
10
Case No. MISSING
Regular Panel Decision
Jul 05, 1995

Granieri v. 500 Fifth Avenue Associates

The Supreme Court, Bronx County, granted plaintiffs' motion for summary judgment on the issue of liability pursuant to Labor Law § 240 (1). The court denied defendant 500 Fifth Avenue Associates' cross-motion to amend their answer to include Workers' Compensation as an exclusive remedy and for summary judgment dismissing the complaint. The denial was based on evidence that control and supervision over the plaintiff was exercised by Newmark Real Estate, Inc., the defendant's managing agent, refuting the claim that the plaintiff was a special employee of the defendant. The court also affirmed that Labor Law § 240 (1) imposes absolute liability on the owner for injuries due to a failure to provide proper equipment, and the plaintiff's possible culpable conduct regarding ladder placement would not defeat the claim. Additionally, the court found no error in refusing to reinstate the third affirmative defense given the two-year delay in serving the verification of the bill of particulars.

Workers' CompensationLabor LawSummary JudgmentAbsolute LiabilitySpecial EmployeePremises LiabilityAffirmative DefenseCulpable ConductLadder AccidentAppellate Review
References
5
Case No. 04-0550
Regular Panel Decision
Jun 30, 2006

Fifth Club, Inc. and David A. West v. Roberto Ramirez

The Supreme Court of Texas addressed the liability of an employer for the acts of an independent contractor providing security services. The case stemmed from an incident at Club Rodéo where security guard David West, an independent contractor, injured Roberto Ramirez, who subsequently sued Fifth Club, Inc. (the owner) and West. Ramirez argued for vicarious liability against Fifth Club based on a "personal character exception" for security work, and alleged negligence and malice in West's hiring. The Court declined to adopt a distinct personal character exception, asserting that employer liability is governed by existing control or nondelegable duty exceptions. Finding insufficient evidence that Fifth Club controlled West's actions or was negligent/malicious in his hiring, the Court reversed the judgment against Fifth Club, Inc. However, the Court affirmed the award of future mental anguish damages against David West, finding sufficient evidence to support this claim.

Independent Contractor LiabilityVicarious LiabilityPersonal Character ExceptionSecurity ServicesNegligent HiringMaliceFuture Mental Anguish DamagesPremises LiabilityNondelegable DutyTortious Acts
References
38
Case No. MISSING
Regular Panel Decision

Califano v. City of New York

Michael Califano, a Department of Sanitation worker, sued the City for personal injuries, alleging a fall from a ladder due to a defective floor. The City contended he fell directly from the truck and conspired with a co-worker, Bobby Brunetti, to fabricate testimony. Brunetti, after demanding $50,000 for 'lying' in a taped conversation with Califano, invoked his Fifth Amendment privilege at trial. The jury initially found for the City, but the trial court set aside the verdict. The appellate court reversed the trial court's decision, ruling that defense counsel's comments on Brunetti's Fifth Amendment assertion and the taped conversation were proper, and an adverse inference against the plaintiff was warranted. The appellate court reinstated the jury's verdict in favor of the City.

Personal InjuryLadder AccidentFraud AllegationsWitness TamperingFifth Amendment PrivilegeAdverse InferenceJury Verdict ReinstatedAppellate ReviewTrial MisconductSubornation of Perjury
References
11
Case No. 03-18-00332-CV
Regular Panel Decision
Jul 26, 2019

in Re Commitment of Aaron Gipson

The State of Texas appealed a trial court's judgment based on a non-unanimous jury verdict that found Aaron Gipson is not a sexually violent predator (SVP). The State argued the jury verdict should have been unanimous for both affirmative and negative determinations of SVP status and that the trial court erred in excluding evidence of Gipson invoking his Fifth Amendment privilege during deposition. The Court of Appeals affirmed the trial court's judgment. It concluded that the statute explicitly requires a unanimous verdict only for an affirmative finding of SVP status, and in the absence of a conflict, civil rules allowing a non-unanimous verdict for a negative finding apply. The court also found no reversible error in the exclusion of evidence regarding Gipson's Fifth Amendment invocation, deeming it cumulative and lacking sufficient probative value to alter the judgment.

Sexually Violent Predator ActCivil CommitmentJury Verdict UnanimityFifth Amendment PrivilegeEvidentiary RulingStatutory ConstructionAppellate ReviewTravis CountyHealth and Safety CodeRules of Civil Procedure
References
40
Case No. 3-92-522-CV
Regular Panel Decision
Sep 15, 1993

Lane Denton v. Texas Department of Public Safety Officers Association

Appellant Lane Denton sued the Texas Department of Public Safety Officers Association (DPSOA) and others for wrongful termination and various torts after his employment as Executive Director was terminated. Denton invoked his Fifth Amendment privilege against self-incrimination during discovery, as he was also under criminal indictment for misappropriation of DPSOA funds. The district court dismissed his civil suit for failure to comply with discovery. The Court of Appeals reversed, holding that the trial court erred in dismissing the cause without applying the Republic Insurance Co. v. Davis test for offensive-use waiver of privilege, and also found the dismissal to be an excessive sanction given Denton's legitimate assertion of his constitutional privilege and the availability of less burdensome remedies like abatement.

Fifth Amendment privilegeSelf-incriminationDiscovery sanctionsAbatement of civil actionWrongful terminationDue processOffensive use waiverTexas Rule of Civil Procedure 215Appellate reviewCivil procedure
References
24
Case No. MISSING
Regular Panel Decision
Aug 30, 1979

Bay v. New York Medical College Flower & Fifth Avenue

In a medical malpractice action, defendants appealed an order from the Supreme Court, Queens County, that denied their motion for leave to serve an amended answer to include the affirmative defense of workers' compensation. The appellate court reversed the order, granting the motion and extending the defendants' time to answer. The court disagreed with the Special Term's determination that the defendants' two-year delay in seeking the amendment was unreasonable and that plaintiffs would be substantially prejudiced. It noted that the plaintiff wife failed to file a workers' compensation claim within the two-year period despite being aware of her condition and employment with the defendant hospital, implying potential eligibility for benefits. The decision clarifies that granting the motion does not preclude further exploration of whether workers' compensation is the exclusive remedy in cases where employees utilize employer-furnished services.

Medical MalpracticeWorkers' CompensationAffirmative DefenseAmended AnswerPrejudiceExclusive RemedyStatute of LimitationsAppellate ReviewEmployment BenefitsBreast Cancer
References
3
Case No. MISSING
Regular Panel Decision

Dawkins v. Biondi Education Center

Plaintiff, a former employee of Leake & Watts and Biondi Education Center, filed a Fifth Amended Complaint under 42 U.S.C. § 1983, alleging violations of his First, Fifth, and Fourteenth Amendment rights, and unlawful discrimination under Title VI of the Civil Rights Act of 1964. He claims he was retaliated against and ultimately terminated for his union-organizing activities. Defendants moved to dismiss the complaint, arguing they are not state actors and that Title VI claims are not applicable to union activity. The court granted the defendants' motion, finding that the plaintiff failed to establish that the defendants were acting under color of state law for the § 1983 claim, and that union activity is not a protected class under Title VI. The Fifth Amended Complaint was dismissed without prejudice, allowing the plaintiff one final opportunity to amend.

42 U.S.C. § 1983Title VIMotion to DismissState Action DoctrineCompulsion TestJoint Action TestPublic Function TestFirst AmendmentFifth AmendmentFourteenth Amendment
References
81
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