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

Case No. 2023 NY Slip Op 00910
Regular Panel Decision
Feb 16, 2023

Matter of Guevara v. Greenvelvet Tree, Inc.

Claimant Wilfredo A. Guevara sustained injuries while employed by Greenvelvet Tree, Inc. The State Insurance Fund (SIF) attempted to cancel the workers' compensation insurance policy covering Greenvelvet Tree, Inc. for nonpayment of premiums. The Workers' Compensation Board ruled that SIF failed to properly cancel the policy with respect to Greenvelvet Tree, Inc., thus holding SIF responsible for the claim. The Appellate Division, Third Department, affirmed the Board's decision, emphasizing that carriers must strictly comply with Workers' Compensation Law § 54 (5) notice requirements. The court found SIF did not separately serve Greenvelvet Tree, Inc. with the cancellation notice, despite shared corporate interests and address, affirming the continuation of coverage.

Workers' Compensation InsurancePolicy CancellationNotice RequirementsStrict ComplianceEmployer LiabilityAppellate ReviewNonpayment of PremiumsCorporate EntitiesAdditional InsuredStatutory Interpretation
References
6
Case No. 2020 NY Slip Op 07002 [188 AD3d 1524]
Regular Panel Decision
Nov 25, 2020

Matter of Walczak v. Asplundh Tree Expert Co.

Claimant Marian Walczak, an arborist, appealed a Workers' Compensation Board decision that deemed his claim for occupational hearing loss untimely. Walczak worked for Asplundh Tree Expert Co. from 1998 to 2006 and filed his claim in 2017, listing the onset of hearing loss as December 27, 2006. The Board found the claim time-barred under Workers' Compensation Law § 28, asserting that Walczak knew or should have known of his hearing loss and its probable work-related cause by January 19, 2012, given his testimony and medical records. The Appellate Division affirmed, emphasizing that specialized medical knowledge is not required to trigger the 90-day limitations period under Workers' Compensation Law § 49-bb, and deference is given to the Board's findings of fact and credibility assessments.

Occupational Hearing LossTime-Barred ClaimWorkers' Compensation Law § 28Workers' Compensation Law § 49-bbStatute of LimitationsDate of DisablementKnowledge of DiseaseMedical Diagnosis Not RequiredAppellate ReviewWorkers' Compensation Board
References
2
Case No. MISSING
Regular Panel Decision

Fruit-Ices Corp. v. CoolBrands International Inc.

Plaintiff Fruit-Ices Corporation sued CoolBrands International Inc. for trade dress infringement and unfair competition under the Lanham Act, alleging that CoolBrands copied the distinctive trade dress of its FrozFruit frozen fruit bars with their Fruib-A-Freeze bars after failed acquisition attempts. The court found Fruit-Ices' trade dress to be inherently distinctive and non-functional, emphasizing the unique combination of its design elements. Applying the Polaroid factors, the court determined a strong likelihood of consumer confusion due to the substantial similarity of the products, their direct competition in the New York impulse bar market, evidence of actual confusion, and CoolBrands' apparent bad faith in adopting the similar trade dress. Consequently, the court granted Fruit-Ices' motion for a preliminary injunction, prohibiting CoolBrands from distributing Fruit-A-Freeze bars in their current, substantially similar trade dress within the specified market. The injunction will become effective upon the posting by plaintiff of a bond in the amount of $1,000,000.

trade dress infringementunfair competitionLanham Actpreliminary injunctionconsumer confusionFrozFruitFruit-A-Freezefrozen fruit barsNew York marketimpulse product
References
17
Case No. MISSING
Regular Panel Decision
Apr 07, 1993

Pennisi v. Standard Fruit & Steamship Co.

A longshoreman, having received workers' compensation benefits from his employer, International Terminal Operating Company (ITO), initiated a personal injury action against Standard Fruit & Steamship Company and Netumar Lines. Standard Fruit and Netumar subsequently filed a third-party complaint against ITO for contribution and indemnification. The Supreme Court initially granted ITO's motion for summary judgment, dismissing the third-party complaint. The appellate court modified this decision, reinstating Standard Fruit's indemnification claim against ITO due to unresolved factual questions regarding Standard Fruit's status as a 'vessel' and the existence of an indemnification contract. The court affirmed the dismissal of contribution claims, citing the LHWCA's exclusivity provision, and remitted the matter for a determination on sanctions.

Workers' Compensation BenefitsLongshoreman InjurySummary JudgmentContribution ClaimsIndemnification ClaimsThird-Party ComplaintLHWCAVessel StatusContractual IndemnityImplied Indemnity
References
14
Case No. MISSING
Regular Panel Decision

McGrath v. Lake Tree Village Associates

Plaintiff, an employee of Deacon, was injured while carrying a scaffold pick on a construction site owned by Lake Tree Village Associates, walking over a dirt pile. Plaintiff sued Lake Tree alleging common-law negligence and violations of Labor Law §§ 200 and 241 (6). The Supreme Court denied Lake Tree's motion for summary judgment. The appellate court reversed, finding no evidence Lake Tree exercised control, thus negating liability under Labor Law § 200 or common-law negligence, and also noting no duty to protect against readily observable conditions. Furthermore, the court ruled that OSHA standards do not provide a basis for liability under Labor Law § 241 (6), and most cited Industrial Code provisions were either general, not applicable, or reiterated common-law duties, thus not supporting liability under § 241 (6).

Labor Law § 200Labor Law § 241 (6)Industrial Code ViolationsOSHA StandardsSummary JudgmentConstruction Site InjuryEmployer LiabilityOwner LiabilityGeneral ContractorScaffold Accident
References
13
Case No. MISSING
Regular Panel Decision

Gonder v. Dollar Tree Stores, Inc.

Pharaoh Gonder filed a lawsuit against Dollar Tree Stores, Inc. in New York state court, alleging race discrimination and retaliation under the New York City Human Rights Law. Dollar Tree removed the case to federal court and subsequently moved to dismiss the complaint and compel arbitration, citing an arbitration agreement signed by Gonder upon commencing employment. Gonder disputed the validity and enforceability of the agreement, claiming he did not recall signing it. The court found that Gonder had indeed electronically signed a valid and enforceable arbitration agreement, with the offer of employment serving as sufficient consideration. Furthermore, the court concluded that Dollar Tree had not waived its right to arbitrate through its participation in administrative investigations or the removal to federal court, noting the minimal litigation activity and lack of prejudice to Gonder. Consequently, the court granted Dollar Tree's motion to dismiss and compel arbitration.

Arbitration AgreementEmployment DiscriminationRetaliationFederal Arbitration ActWaiver of ArbitrationElectronic SignatureContract LawMotion to Compel ArbitrationDiversity JurisdictionNew York City Human Rights Law
References
25
Case No. MISSING
Regular Panel Decision

Dittert v. Oak Tree Farm Dairy, Inc.

Plaintiffs Jason Dittert, Anthony Lombardo, and Walter J. Finn sued Oak Tree Farm Dairy, Inc., for personal injuries sustained during armed robberies while employed by Dairy Barn Stores, Inc. An earlier action against Dairy Barn was dismissed due to Workers' Compensation being the exclusive remedy. Plaintiffs argued Oak Tree was the 'alter ego' of Dairy Barn or a 'joint venturer,' but this claim was also barred by Workers' Compensation Law. On appeal, plaintiffs contended a Dairy Barn District Supervisor, allegedly an Oak Tree employee, breached a duty by failing to order a store closure after a robbery warning. The court determined the supervisor was a co-employee, rendering the action barred by Workers' Compensation Law, and found no proximate cause for the injuries. Consequently, Oak Tree's cross-motion for summary judgment was granted, and the complaint against it was dismissed.

Personal InjuryWorkers' Compensation LawSummary JudgmentAlter Ego DoctrineVicarious LiabilityCo-employee DefenseProximate CauseAppellate ProcedureComplaint DismissalEmployer Liability
References
5
Case No. MISSING
Regular Panel Decision

People v. Novie

This case concerns the constitutionality of the Village of Montebello's Tree Preservation and Landscape Maintenance Law, under which a defendant was charged for removing trees without a permit. The defendant challenged the law on multiple constitutional grounds including ultra vires, uncompensated taking, due process violations, First Amendment infringement, and equal protection. The Justice Court initially granted the defendant's motion to dismiss the charges. On appeal, the court reversed this decision, upholding the constitutionality of the Tree Law. The court found the law served legitimate governmental purposes, its fees were reasonable, and the defendant's taking and due process claims were not ripe due to failure to exhaust administrative remedies. The First Amendment and equal protection challenges were also rejected.

Tree Preservation LawConstitutional LawFifth AmendmentFourteenth AmendmentDue ProcessTakings ClauseEqual ProtectionFirst AmendmentLocal OrdinancesZoning Law
References
46
Case No. ADJ2003862
Regular
Feb 08, 2010

REYES DE SANTIAGO vs. DE SANTIAGO TREE SERVICE, STATE COMPENSATION INSURANCE FUND

This Workers' Compensation Appeals Board case involves an applicant who sustained industrial injuries, including psychiatric harm, after falling from a tree while trimming it. The applicant had been employed for less than six months at the time of injury. The Board granted reconsideration, rescinded the prior award, and returned the case for a new decision because the applicant's fall, though sudden, was not considered an "extraordinary employment condition" under Labor Code section 3208.3(d). The majority found that the risk of falling is inherent and routine for a tree trimmer and therefore does not qualify for the exception to the six-month employment rule for psychiatric injuries.

WCABFindings and Award and Orderindustrial injurypsychiatric injuryLabor Code section 3208.3(d)sudden and extraordinary employment conditionQualified Medical Examinersubstantial evidencepermanent disabilityapportionment
References
6
Case No. MISSING
Regular Panel Decision
Apr 16, 2020

Matter of Wright v. Nelson Tree Serv.

Claimant, an outside employee, was injured in a motor vehicle accident while traveling from his hotel to the employer's bucket truck parking lot. The Workers' Compensation Law Judge initially disallowed the claim, stating the accident did not arise out of and in the course of employment, and that the "outside employee" exception did not apply because he reported to a fixed location before work, and he wasn't required to stay at the hotel. The Workers' Compensation Board reversed, applying the "traveling employee" exception, noting that although not strictly required, it was impractical for the claimant to commute given the long distance from his home. The Board found the claimant's activities were reasonable and his status as an employee continued throughout his stay away from home. The Appellate Division affirmed the Board's decision, concluding that there was substantial evidence to support that the claimant's injuries arose out of and in the course of his employment.

Accidental InjuryCourse of EmploymentTraveling Employee ExceptionOutside Employee ExceptionMotor Vehicle AccidentTraumatic Brain InjuryAppellate ReviewBoard Decision AffirmedEmployer LiabilityPer Diem Expenses
References
10
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