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Case No. 2021 NY Slip Op 04070
Regular Panel Decision
Jun 24, 2021

Matter of Cisnero v. Independent Livery Driver Benefit Fund

Claimant Jeffrey Cisnero, an independent livery driver, sustained injuries when he was shot during a dispatch. He filed a claim for workers' compensation benefits, which was initially disallowed by a WCLJ but later reversed by the Workers' Compensation Board, finding coverage through the Independent Livery Driver Benefit Fund (ILDBF). The carrier appealed, arguing misinterpretation of the relevant statutes, particularly Executive Law § 160-ddd (1). The Appellate Division, Third Department, affirmed the Board's decision, determining that Cisnero's injuries arose out of and in the course of providing covered services as an independent livery driver dispatched by an ILDBF member. The court found that the vehicle's attenuated affiliation with the New York Black Car Operators' Injury Compensation Fund, Inc. did not alter ILDBF's liability.

Workers' CompensationLivery DriverIndependent ContractorBenefit FundAccidental InjuryCourse of EmploymentStatutory InterpretationExecutive LawWorkers' Compensation LawAppellate Review
References
3
Case No. MISSING
Regular Panel Decision

Claim of Mihalaris v. UTOG 2-Way Radio, Inc.

A limousine driver, who leased his vehicle from Augie’s Auto Repair, Inc. (Augie) and was dispatched by UTOG 2-Way Radio, Inc. (UTOG), was assaulted and injured during a vehicle theft while working. Initially, a Workers’ Compensation Law Judge found the driver a general employee of Augie and a special employee of UTOG, apportioning liability. The Workers’ Compensation Board modified this, finding the driver solely an employee of UTOG, discharging Augie based on an interpretation of Workers’ Compensation Law § 2 (4) regarding lessor/owner control. UTOG and its carrier appealed, arguing the Board misapplied the law concerning taxicab drivers, contending the control-related factors only apply when the owner operates the taxicab 40+ hours weekly. The Appellate Court reversed the Board's decision, stating the Board incorrectly applied the statute by requiring control factors for Augie when the 40-hour exception was not met, and remitted the matter for a decision consistent with the controlling statute.

Workers' Compensation LawEmployment RelationshipLimousine DriverTaxicab DriversStatutory InterpretationLessor-Lessee RelationshipGeneral EmploymentSpecial EmploymentAppellate ReviewRemand
References
7
Case No. MISSING
Regular Panel Decision

Sundram v. City of Niagara Falls

The case involves a petitioner, an Indian national and permanent resident alien, whose application for a taxicab driver's license in Niagara Falls, New York, was denied due to a citizenship requirement in a city ordinance. The petitioner challenged this requirement, arguing it violated the Equal Protection Clause of the Fourteenth Amendment. Citing precedents like Yick Wo v. Hopkins and Truax v. Raich, the court affirmed that the Fourteenth Amendment extends protection to aliens regarding their right to earn a livelihood. The court found no compelling state interest to justify the citizenship classification for taxicab drivers, deeming the "undifferentiated fear" of criminal activity insufficient. Consequently, the court held subdivision (e) of section 16 of chapter 365 of the Niagara Falls ordinances unconstitutional, but withheld injunctive relief pending the full processing of the petitioner's application.

Citizenship RequirementEqual Protection ClauseFourteenth AmendmentAlien RightsTaxicab LicensingOrdinance ConstitutionalityOccupational LicensingDiscriminationRight to WorkNiagara Falls
References
14
Case No. MISSING
Regular Panel Decision

Guard Insurance Group, Inc. ex rel. Baxter v. Techtronic Industries Co.

Guard Insurance Group, as assignee for Scott Baxter, filed a product liability and negligence action against Techtronic Industries Co., Ltd., and other defendants, including Home Depot, USA, Inc. The case stems from injuries Baxter sustained while using a Ryobi table saw manufactured and sold by defendants, and Guard seeks reimbursement for workers' compensation payments. Defendants moved for summary judgment, asserting defenses of substantial modification, spoliation of evidence, and statute of limitations. The Court denied the motion to dismiss claims based on substantial modification and spoliation, finding issues of fact. While claims for failure to warn and implied warranty against manufacturing defendants were dismissed, the implied warranty claim against Home Depot survived due to conflicting testimony on the purchase date. The motion for summary judgment was largely denied, allowing most claims to proceed to trial.

Product LiabilityNegligenceSummary Judgment MotionWorkers' Compensation SubrogationTable Saw AccidentProduct Design DefectSafety Guard RemovalSpoliation of EvidenceBreach of Implied WarrantyStatute of Limitations Defense
References
26
Case No. ADJ7892653
Regular
Jul 22, 2016

PETER ALVAREZ vs. CALIFORNIA NATIONAL GUARD, STATE OF CALIFORNIA, OFFICE OF THE ATTORNEY GENERAL, UNINSURED EMPLOYERS BENEFITS TRUST FUND, STATE COMPENSATION INSURANCE FUND

The Appeals Board granted the defendant's Petition for Removal, rescinding the order that joined the Office of the Attorney General as a party. The Board found the Attorney General was not a necessary party as the applicant clearly identified the California National Guard as their employer. Furthermore, the Board raised a jurisdictional issue, as National Guard service under Title 32, which may apply here, generally precludes state workers' compensation benefits. The case is returned to the trial level for an evidentiary hearing to determine jurisdiction.

Petition for RemovalOrder Joining Party DefendantCalifornia National GuardState Active DutyTitle 32Title 10Inactive Duty TrainingMilitary and Veterans CodeNachbaurJurisdiction
References
5
Case No. MISSING
Regular Panel Decision

Claim of Darling v. Transport Drivers, Inc.

The claimant, a truck driver, began experiencing neck pain in 1998 and filed a claim for workers’ compensation benefits, asserting an occupational disease. His treating physician opined that his work activities likely aggravated his degenerative condition, while an independent medical examiner reached a contrary conclusion. A Workers’ Compensation Law Judge initially disallowed the claim, a decision subsequently upheld by the Workers’ Compensation Board. The Board's determination was based on its finding that the treating physician’s opinion relied on an inaccurate description of the claimant's work duties. The Appellate Division affirmed the Board's decision, concluding that it was supported by substantial evidence and acknowledging the Board's authority in resolving conflicting medical evidence.

Causal RelationshipNeck PainOccupational DiseaseMedical EvidenceIndependent Medical ExaminationTreating Physician OpinionSubstantial EvidenceBoard DeterminationAppellate ReviewTruck Driver Injury
References
1
Case No. MISSING
Regular Panel Decision

Kolomick v. New York Air National Guard

The plaintiff sought to challenge a military personnel decision concerning his qualifications as a medical pararescue technician in the New York Air National Guard, pursuing a claim under the Human Rights Law after an unsuccessful internal discrimination complaint. The court considered whether civilian courts possessed subject matter jurisdiction over such military employment decisions. Justice O'Brien concurred with the decision to affirm the lower court's ruling, asserting that civilian courts lack jurisdiction to interfere with military personnel matters. This position is supported by established legal precedent and policy reasons emphasizing the military's distinct hierarchical structure and the need to avoid judicial second-guessing of professional military judgments. The opinion also discussed the inapplicability of anti-discrimination statutes like Title VII and the ADEA to military personnel without explicit legislative intent, further reinforcing the principle of non-interference by civilian courts in military affairs.

Military Personnel DecisionsSubject Matter JurisdictionJudicial ReviewNational GuardHuman Rights LawDiscrimination Complaint ProcedureMilitary LawFederal PreemptionCivilian Court InterferenceMilitary Efficiency
References
21
Case No. ADJ8910480
Regular
Oct 02, 2015

SIMONA MONTALVO vs. DRIVER'S MANAGEMENT, LLC, ACE AMERICA

The Workers' Compensation Appeals Board denied the applicant's petition for reconsideration. The Board upheld the Administrative Law Judge's decision that the applicant, a truck driver, did not sustain a psychiatric injury arising out of and occurring in the course of employment. This denial was based on the ALJ's finding of applicant's lack of credibility due to inconsistent statements and the absence of substantial evidence to overturn this determination. The Board also admonished applicant's representative for misrepresenting an exhibit's status in the petition.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and OrderWCJpsychiatric injuryLabor Code section 3208.3(d)credibility determinationReport and RecommendationMandatory Settlement Conference (MSC)Pre-Trial Conference Statement
References
1
Case No. ADJ7013901
Regular
May 03, 2011

CHANG HYUN KIM vs. SYSTEM CARWASH, LLC, GUARD INSURANCE GROUP

The Workers' Compensation Appeals Board (WCAB) denied reconsideration of the applicant's case, Chang Hyun Kim, against System Carwash, LLC and Guard Insurance Group. The WCAB adopted and incorporated the findings of the workers' compensation administrative law judge (WCJ) as the basis for their denial. The specific reasons for the denial are detailed in the WCJ's report, which was not provided here. Therefore, the applicant's petition for reconsideration was formally rejected.

Workers' Compensation Appeals BoardPetition for ReconsiderationWorkers' compensation administrative law judgeDenying ReconsiderationSystem CarwashLLCGuard Insurance GroupADJ7013901Ronnie G. CaplaneAleonso J. Moresi
References
0
Case No. MISSING
Regular Panel Decision
Mar 31, 1995

Wackenhut Corp. v. International Union, United Plant Guard Workers

Wackenhut Corporation, a security services provider, filed suit to vacate an arbitration award, while the International Union, United Plant Guard Workers of America, Amalgamated Local 515 counterclaimed to enforce it. The dispute arose from Wackenhut's termination of employee Fernando T. Coelho after Consolidated Edison Company revoked his site access to a nuclear facility. An arbitrator ruled that Wackenhut violated the collective bargaining agreement (CBA) by terminating Coelho without just cause, awarding him back pay, benefits, and reinstatement. The District Court, presided over by Judge Sprizzo, affirmed the arbitrator's finding of a CBA violation, concluding that 'relieve from duty' differed from 'discharge for just cause'. However, the court vacated the portions of the award granting back pay, benefits, and reinstatement at another facility, holding that the arbitrator exceeded his contractual authority. The court enforced the arbitrator's directive for Wackenhut to renew efforts to persuade Con Ed to reinstate Coelho's security clearance.

ArbitrationVacatur of Arbitration AwardCollective Bargaining AgreementEmployee TerminationSite Access RevocationManagement Rights ClauseJust CauseBack Pay DisputeEmployee ReinstatementJudicial Review of Arbitration
References
25
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