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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 00704 [213 AD3d 1050]
Regular Panel Decision
Feb 09, 2023

Matter of Paka (Same Day Delivery Inc.--Commissioner of Labor)

The case involves Jacques Paka, a delivery driver, who applied for unemployment insurance benefits after working for Same Day Delivery Inc. The Department of Labor initially determined Paka was an employee, making Same Day liable for contributions. The Unemployment Insurance Appeal Board initially overruled this, finding Paka to be an independent contractor. However, upon reconsideration requested by the Commissioner of Labor, the Board rescinded its prior decision and sustained the Department's original determination, finding an employment relationship. The Appellate Division, Third Department, affirmed the Board's decision, rejecting Same Day's arguments against the reopening of the case and finding substantial evidence to support the Board's conclusion that Same Day exercised sufficient control over Paka to establish an employment relationship. The Court also affirmed that these findings apply to similarly situated individuals.

Unemployment InsuranceIndependent ContractorEmployment RelationshipControl TestAppellate ReviewUnemployment Insurance Appeal BoardLabor LawUnemployment BenefitsDelivery DriverSubstantial Evidence
References
11
Case No. MISSING
Regular Panel Decision

Local 205, Community and Social Agency Employees'union v. Day Care Council of Ny Inc.

Local 205, Community and Social Agency Employees’ Union petitioned for confirmation and enforcement of an arbitration award against the Day Care Council of New York, Inc. (DCC). The award arose from employee grievances against the now-closed Georgia-Livonia Day Care Center. The Union argued that the award should be interpreted as binding upon DCC, a multi-employer bargaining association, despite not explicitly naming DCC for relief. DCC contended it was not a party to the arbitration agreement in the collective bargaining agreement (CBA) and therefore not obligated to arbitrate disputes involving itself. The court, after reviewing the CBA's language and the parties' past conduct, found no agreement by DCC to arbitrate. It also ruled that DCC's defenses were not time-barred by either the Federal Arbitration Act or New York C.P.L.R. § 7511, as these limitations do not apply to arguments challenging the existence of an arbitration agreement itself. Consequently, the Union's petition for confirmation and enforcement of the award against DCC was denied.

Arbitration AwardCollective Bargaining AgreementGrievance ProcedureMulti-Employer AssociationAgreement to ArbitrateFederal Arbitration ActLabor Management Relations ActConfirmation of AwardEnforcement of AwardSouthern District of New York
References
25
Case No. MISSING
Regular Panel Decision
Mar 22, 1971

Claim of Pollak v. Robert Day, Inc.

The Workmen’s Compensation Board awarded disability benefits to a waiter under the Disability Benefits Law, finding him to be a 'shape-up worker' concurrently employed by Creative Caterers, Inc. and Robert Day, Inc. The claimant fell ill in February 1970 and was hospitalized, having worked for both employers in the same calendar week. Appellants challenged the board's finding of concurrent employment, citing the claimant's sporadic work record and arguing a lack of substantial evidence. The court affirmed the board's decision, asserting that concurrent employment and eligibility are questions of fact solely within the board's province, and its conclusion was supported by sufficient evidence. The court clarified that regular employment by the *same* employers within the same calendar week is not necessary; only regular and customary employment by more than one covered employer within the same week is required.

disability benefitsconcurrent employmentshape-up workerWorkmen's Compensation LawArticle 9substantial evidencequestion of factapportionmentemployer liabilityappellate review
References
0
Case No. MISSING
Regular Panel Decision

Grimmer v. Lord Day & Lord

This case is a class action brought under the Worker Adjustment and Retraining Notification Act (WARN Act) by former employees of the law firm Lord Day & Lord, Barrett Smith. The employees alleged that the firm violated the WARN Act by closing its offices without providing the required sixty days' advance notice. Lord Day asserted statutory exceptions, specifically the 'faltering company' and 'unforeseeable business circumstances' exceptions, as affirmative defenses. Plaintiffs moved for partial summary judgment, contending that Lord Day's notice was insufficient as it merely recited the language of a statutory exception without providing a 'brief statement of the basis' for reducing the notice period. The court agreed with the plaintiffs, ruling that simply citing a statutory exception is inadequate and that specific factual basis is required, thus granting the motion and striking Lord Day's affirmative defenses.

WARN Actplant closingmass layoffnotice periodunforeseeable business circumstancesfaltering company exceptionaffirmative defensessummary judgmentstatutory interpretationemployee rights
References
2
Case No. MISSING
Regular Panel Decision

Same Day Delivery Service, Inc. v. Penn Star Insurance

Same Day Delivery Service, Inc. sued its insurer, Penn-Star Insurance Company, seeking a declaration that Penn-Star must cover a personal injury lawsuit filed against Same Day. Penn-Star moved for summary judgment, arguing Same Day failed to provide timely notice of the claim and that the incident was excluded from the policy. The Court granted Penn-Star's motion for summary judgment, concluding that Same Day's notice to Penn-Star was untimely by approximately ten months, or at least two months even under Same Day's arguments, and that the delay was inexcusable under New York law. Consequently, Penn-Star is not obligated to provide coverage.

Insurance LawSummary JudgmentTimely NoticePolicy CoverageDeclaratory JudgmentPersonal InjuryNew York LawInsurance Policy ExclusionCommercial General LiabilityAs Soon As Practicable Clause
References
39
Case No. ADJ3859668
Regular
Sep 05, 2014

GUY CULVER vs. TERRY DAY, DEPT. OF SOCIAL SERVICES/IHSS, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board dismissed Guy Culver's Petition for Reconsideration as untimely filed. The Board found the petition was filed more than 25 days after the original order, exceeding the statutory 20-day limit plus 5 days for mailing. Even if it had been timely, the Board would have denied it on the merits based on the administrative law judge's report. Therefore, the Petition for Reconsideration is dismissed.

Petition for ReconsiderationUntimely FilingWorkers' Compensation Appeals BoardAdministrative Law JudgeLabor Code Section 5903Code of Civil Procedure Section 1013DismissalApplicantDefendantState Compensation Insurance Fund
References
0
Case No. MISSING
Regular Panel Decision

Albert F. v. Stone

Albert F., a patient at Kings Park Psychiatric Center, filed a CPLR Article 78 proceeding to compel the Commissioner of the New York State Office of Mental Health and the Director of the Bureau of Forensic Services to apply for an order authorizing his unescorted furloughs. Albert F. argued that his treatment team, the Hospital Forensic Committee, and the Bureau of Forensic Services had all approved his furlough application based on clinical suitability and public safety. The respondents contended that the application was discretionary and that the Commissioner retained final authority. The court, presided over by Alan D. Oshrin, J., denied the respondents' motion to dismiss and the petitioner's motion to amend the petition. The court clarified that while the initial decision to apply for a furlough order is discretionary, if the Director of Forensic Services determines that two specific conditions (clinical warrant and public safety) are met, then the application becomes mandatory. The court ordered the petitioner to submit certified and updated documentary evidence to support their claims within 45 and 90 days, stating that if the conditions are met, the court will direct the Director to make the application.

MandamusCPLR Article 78Furlough OrderPsychiatric Patient RightsMental Hygiene LawDiscretionary vs Mandatory ActsStatutory InterpretationAdministrative LawBureau of Forensic ServicesKings Park Psychiatric Center
References
15
Case No. MISSING
Regular Panel Decision

In re the Arbitration between Carey & Westinghouse Electric Corp.

The case involves cross-appeals from an order of Special Term concerning the arbitration of discharge grievances in Buffalo and furlough grievances in Sharon under a collective bargaining agreement. The Special Term had denied arbitration for the Buffalo discharge grievances, which the appellate court found to be a misconception of the court's role in arbitration. The appellate court emphasized that only the existence of an agreement to arbitrate and a dispute thereunder should be considered, leaving matters of law and fact to the arbitrators. The court also deemed the question of public policy overriding arbitration rules premature. Regarding the Sharon furlough claims, the Special Term's decision to compel arbitration was affirmed, with the appellate court rejecting claims of Federal preemption. The final order was modified to grant the petitioner's motion to compel arbitration for the Buffalo discharge grievances and affirmed in all other respects.

ArbitrationCollective BargainingLabor DisputeDischarge GrievancesFurlough GrievancesCross-AppealSpecial Term OrderPublic PolicyFederal PreemptionAppellate Review
References
4
Case No. ADJ2006433 (LAO 0799986) ADJ2790090 (LBO 0278759)
Regular
Sep 03, 2010

ORANGE PORTER vs. WESTEC GEAR CORPORATION, CNA CASUALTY OF CALIFORNIA

The Workers' Compensation Appeals Board (WCAB) dismissed the applicant's petition for reconsideration because it was based on an interlocutory procedural order, not a final decision on substantive rights or liabilities. The WCAB had previously rescinded a prior award to correct errors and clarify issues, returning the matter to the Workers' Compensation Judge for further proceedings. Additionally, the applicant's claim that the WCAB exceeded the 60-day deadline for acting on the defendant's petition was rejected, as the decision was issued on the next business day after a furlough holiday.

Workers' Compensation Appeals BoardPetition for ReconsiderationDismissing PetitionInterlocutory OrderFinal OrderLabor Code § 5909Sixty Day RuleFurlough DayExecutive OrderTemporary Disability
References
4
Case No. 570086/19
Regular Panel Decision
Jan 06, 2020

People v. Daye (Kenrick)

The People appealed an order from the Criminal Court of the City of New York, Bronx County, which granted the defendant's motion to suppress a dog recovered from his backyard. The Appellate Term, First Department, affirmed the suppression order, finding no basis to disturb the lower court's credibility determinations. The court held that the police, assisting an Administration for Children's Services (ACS) caseworker, exceeded the narrow scope of a Family Court Act § 1034 order by unilaterally entering the defendant's enclosed backyard without a warrant or exigent circumstances. The court emphasized that the order did not grant unfettered access to the curtilage of the defendant's home, which is protected under the Fourth Amendment.

Fourth AmendmentSuppression MotionBackyard SearchCurtilageFamily Court ActWarrant RequirementExigent CircumstancesPolice AuthorityACS AssistanceCredibility Determination
References
8
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