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

Case No. ADJ549943 (VNO 0516779)
Regular
Oct 11, 2010

HELEN PENA vs. SECURITAS SECURITY, BROADSPIRE INSURANCE

The Workers' Compensation Appeals Board (WCAB) dismissed Helen Pena's Petition for Reconsideration because it was not verified as required by Labor Code section 5902. Even if it had been verified, the WCAB would have denied the petition on its merits, adopting the administrative law judge's reasoning. The dismissal is affirmed as per precedent set in *Smith v. Workers' Comp. Appeals Bd.*.

Petition for ReconsiderationVerifiedLabor Code section 5902Workers' Compensation Appeals BoardWCJ ReportDismissedMeritsADJ549943Securitas SecurityBroadspire Insurance
References
1
Case No. 2018 NY Slip Op 01255 [158 AD3d 565]
Regular Panel Decision
Feb 22, 2018

Pena v. Jane H. Goldman Residuary Trust No. 1

Juan Pena, an injured worker, sued Jane H. Goldman Residuary Trust Number 1 and Sol Goldman Investments, LLC (SGI) under Labor Law § 240 (1) after sustaining injuries from a fall off an unsecured and wobbling ladder. The Supreme Court, Bronx County, initially granted Pena partial summary judgment on the issue of liability against SGI. SGI appealed this decision. The Appellate Division, First Department, affirmed the lower court's ruling, finding that Pena's deposition testimony sufficiently established his entitlement to judgment as a matter of law. The court concluded that SGI failed to raise a triable issue of fact, particularly regarding the provision of adequate safety devices or whether Pena was the sole proximate cause of the accident.

Summary judgmentLabor Law § 240(1)Ladder accidentUnsecured ladderFall from heightConstruction site accidentAppellate decisionPrima facie caseTriable issue of factProximate cause
References
4
Case No. 2014 NY Slip Op 05524 [119 AD3d 916]
Regular Panel Decision
Jul 30, 2014

Pena v. Varet & Bogart, LLC

The plaintiff, Augustin Pena, was injured after falling from a 20-foot ladder while washing windows at a four-story hostel owned by Varet and Bogart, LLC, and operated by First Consul Development, LLC. He subsequently commenced an action alleging a violation of Labor Law § 240 (1). The Supreme Court initially granted the defendants' motion for summary judgment dismissing this cause of action and denied the plaintiff's cross-motion for summary judgment on the issue of liability. On appeal, the Appellate Division, Second Department, modified the Supreme Court's order. The appellate court denied the defendants' motion for summary judgment, concluding that they failed to establish, prima facie, that Pena's activity was not "cleaning" under Labor Law § 240 (1), thereby reversing that part of the lower court's decision. However, it affirmed the denial of the plaintiff's cross-motion for summary judgment, as triable issues of fact remained regarding whether his activity was covered by the statute.

Personal InjuryFall from LadderWindow WashingRoutine MaintenanceElevated Work SiteStatutory InterpretationSummary JudgmentNondelegable DutyConstruction LawLiability
References
8
Case No. 2021 NY Slip Op 03261 [194 AD3d 576]
Regular Panel Decision
May 20, 2021

Pena v. Intergate Manhattan LLC

Plaintiff Juan Pena, a glazier, was injured when a power cord struck his arm while working on a motorized scaffold. The Supreme Court granted Pena's motion for partial summary judgment on his Labor Law § 240 (1) claim against the owners/general contractors (Intergate Manhattan LLC, Sabey Data Center Properties LLC, Sabey IGM Construction LLC, American Industries Corp. of New York). However, it denied his motion against subcontractor Greg Beeche Logistics, LLC due to factual disputes regarding Beeche's control over the work area. The court also denied the Owners/GC's motions for contractual and common-law indemnification against Beeche, deeming them premature. The Appellate Division, First Department, unanimously affirmed these rulings.

Labor Law § 240(1)Summary JudgmentIndemnificationContractual IndemnificationCommon-Law IndemnificationStatutory AgentComparative NegligenceScaffold AccidentConstruction Site SafetyGlazier Injury
References
4
Case No. MISSING
Regular Panel Decision

German v. Pena

Plaintiff Alexander German, a Russian native, sued Frederico Pena, Secretary of the U.S. Department of Energy, alleging national origin discrimination under Title VII. German claimed unequal employment terms, failure to promote, and prevention from competing for a promotion at the Environmental Measurements Laboratory (EML). The defendant moved to dismiss for lack of subject matter jurisdiction and failure to state a claim, arguing German failed to exhaust administrative remedies. The court found that German did not contact an EEO counselor within the required 45 days of the alleged discrimination, despite EML providing notice of these procedures. The court rejected regulatory and equitable exceptions, finding German's subjective ignorance of the EEO poster's content incredible and insufficient. The court granted summary judgment in favor of the defendant, dismissing the action with prejudice.

National Origin DiscriminationTitle VII Civil Rights ActAdministrative ExhaustionEEO CounselingSummary JudgmentFederal EmployeesTimeliness RequirementEquitable TollingEquitable EstoppelPro Se Litigant
References
23
Case No. 534739
Regular Panel Decision
Jun 29, 2023

In the Matter of the Claim of Lidia Pena

Claimant, Lidia Pena, established claims for work-related injuries following an October 2014 accident. A Workers' Compensation Law Judge initially found her permanently totally disabled, but the Workers' Compensation Board modified this decision, rescinding the permanency classification and remitting the case for further development of the record, including a new determination on permanency and labor market attachment. The Board subsequently denied claimant's application for reconsideration and/or full Board review. Claimant appealed both Board decisions to the Appellate Division, arguing, among other things, that the decisions lacked substantial evidence and infringed upon her due process rights. The Appellate Division dismissed the appeals as interlocutory, noting that the Board's decisions did not finally resolve all substantive issues or reach dispositive threshold legal issues, and therefore were not proper subjects for appeal at this time.

Workers' CompensationAppellate ReviewPermanency ClassificationTotal DisabilityPartial DisabilityLabor Market AttachmentInterlocutory AppealDue ProcessRemittalBoard Decision
References
6
Case No. 2023 NY Slip Op 03523 [217 AD3d 1291]
Regular Panel Decision
Jun 29, 2023

Matter of Pena v. Cardinal McCloskey Sch.

Claimant, Lidia Pena, appealed two decisions by the Workers' Compensation Board. The Board had modified a Workers' Compensation Law Judge's finding of permanent total disability, rescinding the classification and remitting the case for further development on permanency and labor market attachment. Claimant's subsequent request for reconsideration was denied. The Appellate Division, Third Department, dismissed both appeals as interlocutory, ruling that the Board's decisions did not finally resolve the substantive issues and thus were not subject to immediate review. The Court noted that piecemeal review of nonfinal decisions is generally avoided in workers' compensation cases, and the issues would be reviewable upon appeal of a final Board decision.

Workers' CompensationPermanent DisabilityInterlocutory AppealAppellate ProcedureBoard DecisionMedical ExaminationLabor Market AttachmentDue ProcessRescissionRemittal
References
6
Case No. MISSING
Regular Panel Decision

Katz v. International Ladies' Garment Workers' Union

Plaintiff Leo I. Catz, operating Helene’s Retail Outlet, seeks a temporary injunction to prevent picketing by unnamed defendants (a union). The retail outlet is located in the same building as Helene Manufacturing Co., which performs manufacturing operations for Smart Sue, Inc., a 'struck' plant. The defendants concede their picketing targets both the manufacturer and the retail outlet. The central issue is whether the retail outlet is a separate entity or has a unity of interest with Helene Manufacturing Co., thereby making the picketing lawful. The court reviews evidence regarding shared premises, employees, and financial operations, suggesting an integrated business. Ultimately, the court denies the injunction, citing arguable federal pre-emption by the National Labor Relations Board due to the involvement of interstate commerce, thus limiting the state court's jurisdiction. The court also found the picketing to be reasonable, peaceful, and not misleading.

Labor disputePicketingInjunctionSecondary boycottUnity of interestFederal pre-emptionNational Labor Relations BoardRetail outletManufacturingJurisdiction
References
7
Case No. ADJ7392391
Regular
Sep 21, 2012

JOSE PENA vs. PACIFIC COAST BUILDING, CHARTIS CLAIMS, INC.

The Workers' Compensation Appeals Board (WCAB) has dismissed Jose Pena's petition for removal. The WCAB reviewed the petition and the administrative law judge's report, finding sufficient grounds for dismissal. Pena's supplemental pleading did not alter this decision. Consequently, the petition for removal is officially dismissed.

Petition for RemovalDismissalWorkers' Compensation Appeals BoardAdministrative Law Judge ReportSupplemental PleadingCal. Code Regs.tit. 8§ 10848ADJ7392391Oakland District Office
References
1
Case No. 2016 NY Slip Op 00346 [135 AD3d 837]
Regular Panel Decision
Jan 20, 2016

Mullen v. Helen Keller Services for the Blind

Andrea Mullen, the injured plaintiff, alleged that she tripped and fell over a treadmill at the defendant's facility in Hempstead while training. She filed an action to recover damages for personal injuries. The Supreme Court, Nassau County, granted the defendant's motion for summary judgment, dismissing the complaint. The Appellate Division, Second Department, affirmed the Supreme Court's order, concluding that the treadmill was an open and obvious condition and not inherently dangerous as a matter of law, and the plaintiffs failed to raise a triable issue of fact in opposition.

Personal InjuryPremises LiabilitySummary JudgmentOpen and Obvious ConditionNegligenceDuty of CareReasonably Safe ConditionTriable Issue of FactAppellate ReviewSlip and Fall
References
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