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

Case No. 2018 NY Slip Op 07122 [165 AD3d 1108]
Regular Panel Decision
Oct 24, 2018

Matter of Alexandria F. (George R.)

This case involves consolidated proceedings concerning the alleged abuse and neglect of three children, Alexandria F., Adalila R., and George W.R., by George R. The Family Court, Nassau County, found George R. severely abused Alexandria F. and derivatively abused Adalila R. and George W.R., also finding neglect of all three children. Additionally, the Family Court denied a petition for custody and access filed by Adalila R.-S. On appeal, the Appellate Division, Second Department, modified the Family Court's order by deleting the 'severe' designation from the abuse finding regarding Alexandria F., as George R. was not her legal parent at the time. The court affirmed the findings of abuse against Alexandria F. and derivative abuse against Adalila R. and George W.R. Crucially, the Appellate Division disagreed with the Family Court's decision not to treat George R. as the father of Adalila R. and George W.R., citing formal judicial admissions by DSS. Consequently, the matter was remitted to the Family Court for further dispositional proceedings concerning Adalila R. and George W.R., including a re-evaluation of reunification efforts and the appropriateness and duration of protection orders. The denial of Adalila R.-S.'s custody and access petition was affirmed.

Child abuseChild neglectDerivative abuseParental rightsPaternityOrders of protectionCustody and accessFamily Court ActAppellate reviewRemittal
References
18
Case No. 2021 NY Slip Op 03231 [194 AD3d 1290]
Regular Panel Decision
May 20, 2021

Matter of George

The case concerns the estate of Mathai Kolath George, where the initial executor, Annie Kolath, engaged in self-dealing by purchasing the Llenroc Mansion through Power Angels, LLC, after terminating the decedent's prior contract. Following her removal, successor executors were appointed, leading to the current administrator, Andrew B. Jarosh, filing a petition seeking judicial settlement and a constructive trust on the property. Surrogate's Court dismissed the constructive trust claim as time-barred, prompting an appeal by Anil Paulose, Elizabeth Paulose, Thomas K. George, and Sharon George. The Appellate Division, Third Department, reversed this dismissal, applying the fiduciary tolling rule, and remitted the matter for further proceedings.

Estate LawConstructive TrustFiduciary DutyStatute of LimitationsTolling RuleSelf-DealingExecutors and AdministratorsAppellate ProcedureProperty DisputeReal Estate
References
17
Case No. MISSING
Regular Panel Decision
Apr 26, 2011

Essex Ins. Co. v. Vickers

Essex Insurance Company (plaintiff) initiated an action seeking a declaratory judgment that it was not obligated to defend or indemnify several defendants, including George E. Vickers, Jr., Enterprises, Inc., and the property owners 99 Lynn Avenue, LLC and 105 Lynn Avenue, LLC (the Lynn defendants), in an underlying personal injury lawsuit. The underlying action arose from an injury sustained by an employee of a subcontractor on a construction project, and Essex disclaimed coverage based on an 'employee exclusion' and argued the Lynn defendants were not additional insureds. The Supreme Court denied Essex's motion for summary judgment and granted the Lynn defendants' cross-motion for summary judgment, which sought reformation of the insurance policy and a declaration of Essex's duty to defend. On appeal, the order was affirmed, with the court finding the employee exclusion ambiguous regarding employees acting outside the scope of employment. Additionally, the court determined that the Lynn defendants were covered as additional insureds due to mutual mistake and Essex's failure to comply with Insurance Law § 3426 regarding notice requirements for conditional renewals, thus obligating Essex to defend them.

Insurance CoverageDuty to DefendIndemnificationEmployee ExclusionAdditional Insured StatusPolicy ReformationSummary JudgmentMutual MistakeInsurance Notice RequirementsCommercial Liability Policy
References
22
Case No. MISSING
Regular Panel Decision

Madden v. Creative Services, Inc.

Plaintiffs George Madden and Roseanne Cohen filed a diversity action against Ralph Douglas Howe, Jr., Michael Sean Cole, National Amusements, Inc., Creative Services, Inc., Sklar, and Redstone. The suit arose from a break-in into the plaintiffs' attorney's office by Howe and Cole, employees of Creative Services, which was hired by National Amusements to investigate opposition to a proposed theater complex. Plaintiffs alleged various torts including intentional infliction of emotional distress, conversion, interference with attorney-client privilege, unlawful search and seizure, and negligent infliction of emotional harm. The court granted the defendants' motions to dismiss the complaint, finding that the alleged conduct did not meet the legal thresholds for the claimed torts under New York law and declined to create new causes of action. Consequently, all principal and derivative claims were dismissed.

Intentional Infliction of Emotional DistressConversionAttorney-Client PrivilegeUnlawful Search and SeizureNegligent Infliction of Emotional HarmLoss of ConsortiumMotion to DismissSummary JudgmentFederal Rules of Civil ProcedurePleading Standards
References
26
Case No. VNO 0453567, VNO 0453569
Regular
Jan 23, 2008

GEORGE FORTNER, JR. vs. COUNTY OF LOS ANGELES

The Workers' Compensation Appeals Board rescinded a prior decision that combined permanent disability ratings for two industrial injuries. This action was based on the recent en banc decision in *Benson v. The Permanente Medical Group*, which held that the *Wilkinson* rule for combining disabilities is generally no longer applicable due to new apportionment requirements. The case is returned to the trial level for the judge to revisit permanent disability ratings consistent with the *Benson* decision.

Workers Compensation Appeals BoardGeorge Fortner Jr.County of Los AngelesPermissibly Self-InsuredVNO 0453567VNO 0453569Opinion and Decision After ReconsiderationJoint Findings and AwardIndustrial InjuryLow Back
References
2
Case No. CV-22-2040
Regular Panel Decision
Mar 14, 2024

In the Matter of the Claim of George Mina

Claimant George Mina appealed a Workers' Compensation Board decision that found his failure to attend independent medical examinations (IMEs) unreasonable. Mina, who injured his back in December 2020, missed two scheduled IMEs in Manhattan, citing the unreasonableness of travel from his New Jersey residence. A Workers' Compensation Law Judge initially found no good cause for his absence but directed the employer to schedule an IME within 30 miles of his home. The Board affirmed this decision, which was subsequently upheld by the Appellate Division, Third Judicial Department, citing that the IME location in Manhattan (22.3 miles from claimant's residence) was within a "reasonable distance" as per Workers' Compensation Law § 137 (4).

Workers' CompensationIndependent Medical ExaminationIMETravel DistanceUnreasonable RefusalSuspension of PaymentsBack InjuryNew Jersey ResidenceManhattan IMEAppellate Division
References
4
Case No. OP 14-00510
Regular Panel Decision
Nov 14, 2014

EISENHAUER, JR.,, ROSCOE A. v. COUNTY OF JEFFERSON

Petitioner Roscoe A. Eisenhauer, Jr. initiated a proceeding under EDPL 207 to challenge the County of Jefferson's determination to condemn real property for expanding a public airport runway. The petitioner contended that the respondent failed to demonstrate an actual public use or benefit for the taking and that the taking was excessive. The court rejected these contentions, affirming that a public benefit existed and that the condemnor has broad discretion in determining the scope of the taking. The petitioner also argued that the respondent did not comply with EDPL 207 (4) and SEQRA, but the court found no error in the respondent's environmental review process. Consequently, the Appellate Division confirmed the respondent's determination and dismissed the petition.

Eminent DomainPublic UseCondemnationAirport ExpansionJudicial ReviewSEQRA ComplianceEnvironmental LawProperty RightsAppellate DivisionGovernmental Discretion
References
16
Case No. 535730
Regular Panel Decision
Apr 18, 2024

In the Matter of the Claim of Joseph Birro Jr.

Claimant Joseph Birro Jr., a roofer, appealed a Workers' Compensation Board decision that ruled apportionment did not apply to his workers' compensation award. Birro had two established work-related injury claims, one in 2006 and another in 2015, while working for Wolkow-Braker Roofing Corp. The 2006 claim, with State Insurance Fund as the carrier, resulted in an 18.75% schedule loss of use for his left leg. The 2015 claim, with New Hampshire Insurance Company as the carrier, led to Birro being classified as permanently partially disabled with a 59% loss of wage-earning capacity after surgeries. Initially, a Workers' Compensation Law Judge apportioned liability between the two claims, but the Board rescinded this. After further medical opinion, the WCLJ apportioned 80% to 2006 and 20% to 2015. The Board then modified this, finding apportionment inapplicable and placing full liability with New Hampshire for the 2015 claim. The Appellate Division affirmed the Board's decision, finding that the Board properly rejected the sole medical opinion on apportionment because its conclusions were not supported by the record, considering Birro continued working after the 2006 injury and did not have surgery until after the 2015 incident.

Workers' Compensation AppealApportionmentMedical Opinion RejectionSubstantial EvidencePermanent Partial DisabilitySchedule Loss of UseWork-Related InjuryOccupational HazardRooferAppellate Review
References
12
Case No. 2014 NY Slip Op 09098
Regular Panel Decision
Dec 31, 2014

Cives Corp. v. George A. Fuller Co., Inc.

Cives Corporation sued George A. Fuller Company, Inc., and Liberty Mutual Insurance Company for breach of contract and on a performance bond related to a construction project. The Supreme Court granted Fuller's motion for summary judgment, dismissing the complaint due to a contractual one-year limitation period. Cives appealed this decision. The Appellate Division, Second Department, reversed the judgment, holding that Cives raised triable issues of fact concerning whether work was performed within the one-year period prior to commencing the action. Consequently, the complaint was reinstated against both defendants.

Breach of ContractSummary JudgmentContractual Limitation PeriodConstruction ProjectPerformance BondMechanic's LienAppellate ReviewTriable Issues of FactTimeliness of ActionReinstatement of Complaint
References
5
Case No. 2024 NY Slip Op 06460
Regular Panel Decision
Dec 20, 2024

Jr. v. Shults Mgt. Group, Inc.

Plaintiff Floyd C. Bacon, Jr. sustained injuries after tripping on an electrician's pull string at a worksite, leading to a Labor Law and common-law negligence action. Defendant Ahlstrom-Schaeffer Electric Corporation, an electrical subcontractor, moved for summary judgment to dismiss the amended complaint and cross-claims, and for sanctions due to spoliation of evidence, but the Supreme Court denied the motion. On appeal, the Appellate Division modified the order by granting the dismissal of Labor Law §§ 200 and 241 (6) causes of action against Ahlstrom, concluding it lacked supervisory authority. However, the court affirmed the denial of dismissal for common-law negligence and indemnification cross-claims, finding an issue of fact regarding whether Ahlstrom created the dangerous condition. The denial of sanctions for spoliation of evidence against Kessel Construction, Inc. and plaintiffs was also affirmed, as culpable intent was not established.

Construction AccidentTrip and FallLabor LawCommon Law NegligenceSummary JudgmentSpoliation of EvidenceSubcontractor LiabilityIndemnificationAppellate ReviewWorksites Safety
References
21
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