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

Case No. MISSING
Regular Panel Decision
Jan 23, 2008

Finkel v. Omega Communication Services, Inc.

Plaintiff Gerald Finkel, Chairman of the Joint Industry Board of the Electrical Industry, sued Omega Communication Services, Inc. for delinquent contributions to employee benefit plans under ERISA and LMRA. Omega failed to appear, leading to a default judgment motion. Magistrate Judge Azrack recommended granting default judgment, awarding $122,846.59 to the plaintiff, including unpaid contributions, interest, liquidated damages, and attorneys' fees and costs. District Judge John Gleeson adopted this Report and Recommendation, directing the clerk to enter judgment in accordance with the recommendation. The case details calculations for various benefit plans and addresses the reasonableness of attorney fees and costs.

ERISALMRADefault JudgmentDelinquent ContributionsEmployee BenefitsMulti-employer PlanAttorneys FeesLiquidated DamagesPrejudgment InterestCollective Bargaining Agreement
References
19
Case No. MISSING
Regular Panel Decision

Volt Technical Services Corp. v. Immigration & Naturalization Service

Plaintiff Volt Technical Services Corp. applied for H-2 visas for nuclear start-up technicians, which the Immigration and Naturalization Service (INS) denied, asserting the need was permanent, not temporary. After the denial was affirmed on appeal, Volt filed suit, alleging the INS's decision was arbitrary and capricious. The court upheld the INS's interpretation of the Immigration and Nationality Act § 101(a)(15)(H)(ii), which requires the employer's need for services to be temporary, not just the individual assignments. Finding that Volt demonstrated a recurring need for such technicians over several years, the court granted the INS's motion for judgment on the pleadings and denied Volt's.

Immigration LawH-2 visasNonimmigrant WorkersTemporary EmploymentImmigration and Nationality ActAdministrative Procedures ActDeclaratory Judgment ActAgency InterpretationJudicial ReviewNuclear Industry
References
5
Case No. ADJ1182220 (WCK 0044768) ADJ144318 (WCK 0044769)
Regular
Feb 27, 2009

RICHARD CRUZ vs. AMERICAN PROTECTIVE SERVICES INC., CAMBRIDGE INTEGRATED SERVICES

The Workers' Compensation Appeals Board denied reconsideration of an award to Richard Cruz. The Board adopted the findings of the Administrative Law Judge (WCJ) who found that the applicant sustained a specific industrial spinal injury on December 16, 1997, and a cumulative trauma spinal injury through January 28, 1998, while employed by American Protective Services. The WCJ found the applicant credible and relied on the opinions of two medical evaluators, Dr. Brose and Dr. Lavorgna, who ultimately supported the finding of industrial injuries. The Board gave great weight to the WCJ's credibility determination and incorporated the WCJ's report, denying the defendant's petition.

Workers' Compensation Appeals BoardReconsideration DeniedWCJ ReportCredibility FindingIndustrial InjurySpecific InjuryCumulative TraumaSpine InjurySecurity GuardAgreed Medical Evaluator
References
1
Case No. MISSING
Regular Panel Decision

Scott Wetzel Services, Inc. v. New York State Board of Industrial Appeals

The case involves a CPLR article 78 proceeding initiated by a nationwide company, which administers workers’ compensation and general liability claims, against the State Board of Industrial Appeals. The company challenged a Department of Labor determination, later modified by the Board, that its claims examiners were not exempt from Fair Labor Standards Act (FLSA) overtime pay requirements. The core issue was whether the examiners qualified for an administrative capacity exemption under FLSA. Applying the "short test" and the "production/administrative dichotomy," the court concluded that the examiners were "production workers" as their primary duty was to produce the services the employer offered. Consequently, the court found substantial evidence to support the Board's determination, confirmed the Board's decision, and dismissed the petition.

Overtime PayFLSA ExemptionAdministrative CapacityClaims ExaminersLabor Law ViolationCPLR Article 78Production WorkersState Board of Industrial AppealsWage and Hour DisputesDiscretion and Independent Judgment
References
10
Case No. MISSING
Regular Panel Decision

Americredit Financial Services, Inc. v. Oxford Management Services

AmeriCredit Financial Services, Inc. (AmeriCredit) commenced an action to confirm an arbitration award against Oxford Management Services (OMS). OMS cross-moved to vacate the award, alleging the arbitrator exceeded his powers by dismissing a counterclaim and manifestly disregarded the law. The arbitrator had dismissed OMS's counterclaim for spoilation of evidence. The Court affirmed the arbitrator's decision, finding he did not exceed his authority under the RSA by dismissing the counterclaim or by interpreting the contract terms regarding account termination. The Court also found no manifest disregard for the law, concluding the arbitrator's decision was rationally supported by the record. Consequently, AmeriCredit's motion to confirm the award was granted, and OMS's motion to vacate was denied.

Arbitration Award ConfirmationArbitration Award VacaturFederal Arbitration ActManifest Disregard of LawArbitrator PowersSpoilation of EvidenceContract InterpretationCollection Agency DisputeSummary ProceedingJudicial Review of Arbitration
References
41
Case No. 03-cv-4134
Regular Panel Decision

Infantolino v. Joint Industry Board of the Electrical Industry

Anthony Infantolino sued the Joint Industry Board of the Electrical Industry (JIB) and Thomas Bush, alleging unlawful retaliation under the Americans with Disabilities Act (ADA) and New York State/City laws. JIB moved for summary judgment, arguing procedural defects and substantive failures, including that it was not Infantolino's employer. The court found JIB to be a 'joint labor-management committee' and thus a 'covered entity' under the ADA, refuting the employer argument. The court denied summary judgment regarding the retaliation claims, finding genuine issues of fact as to whether JIB's stated reasons for its actions were pretexts for impermissible retaliation. However, the motion for summary judgment was granted in part, denying punitive and compensatory damages for the ADA retaliation claim and punitive damages for the New York State Human Rights Law claim, but allowing punitive damages for the New York City Human Rights Law claim.

ADA RetaliationDisability DiscriminationSummary JudgmentBurden-Shifting FrameworkCausal ConnectionPretextPunitive DamagesCompensatory DamagesNew York City Human Rights LawNew York State Human Rights Law
References
36
Case No. MISSING
Regular Panel Decision

Saxby v. LPS Field Services, Inc.

Plaintiff Richard Saxby was injured after falling off a roof while performing property repairs for his company, Finger Lakes Property Services, at a property in foreclosure owned by First Union Corporation. First Union had contracted LPS Field Services for property preservation, which subsequently subcontracted through several intermediaries, eventually leading to Saxby's company. Saxby sued LPS, alleging common law negligence and violations of New York Labor Law §§ 200, 240, and 241, with the case removed to federal court based on diversity jurisdiction. LPS moved to dismiss the complaint under Fed. R. Civ. Proc. 12(b)(6). The court granted the motion in part, dismissing the negligent hiring claim, but denied the motion with respect to the remaining common law negligence and Labor Law claims, and granted the plaintiff leave to amend his complaint to specify Industrial Code violations.

NegligenceLabor LawMotion to DismissConstruction AccidentProperty PreservationIndependent ContractorDuty of CareFederal JurisdictionDiversity JurisdictionNew York Law
References
15
Case No. MON 328728 MON 328729
Regular
Jan 30, 2008

RICARDO GARAY vs. INDUSTRIAL CONTAINER SERVICES, AMERICAN HOME ASSURANCE COMPANY, AIG CLAIM SERVICES

This case involves a dispute over temporary disability indemnity payments and a claimed overpayment by the defendant. The Appeals Board rescinded the prior findings on temporary disability due to conflicting evidence regarding payment dates and disability periods. The matter is returned to the trial level for further development of the record and new findings on temporary disability, potential overpayments, and the priority of liens, while affirming the findings of industrial injury, permanent disability, and the need for future medical treatment.

Workers Compensation Appeals BoardRicardo GarayIndustrial Container ServicesAmerican Home Assurance CompanyAIG Claim ServicesMON 328728MON 328729ReconsiderationJoint Findings and AwardWCJ
References
9
Case No. MISSING
Regular Panel Decision

Matter of Marzovilla v. New York State Industrial Board of Appeals

Petitioners Nicola Marzovilla and Valodome, Inc., challenged a determination by the Industrial Board of Appeals (IBA) which found they violated Labor Law § 196-d by misappropriating employee tips at their New York City restaurant, iTrulli. The misappropriation occurred from 2001 to 2005 through the inclusion of senior employees, Gianni Linardic and Alex Steidl, in a mandatory tip pool, despite their ineligibility due to supervisory roles or non-service primary duties. The Department of Labor (DOL) initially assessed approximately $407,000 in owed wages, interest, and penalties, a finding largely upheld by the IBA. The Appellate Division confirmed the IBA's decision, concluding that Linardic exercised "meaningful authority" over other servers and Steidl's duties were not principally customer service, thus rendering both ineligible for tip sharing. Consequently, the determination of tip misappropriation was upheld, and the petitioners' CPLR article 78 petition was dismissed.

Tip PoolingWage MisappropriationLabor Law § 196-dIndustrial Board of AppealsAppellate ReviewRestaurant IndustrySupervisory EmployeesTip EligibilityCPLR Article 78Judicial Review
References
6
Case No. 2016 NY Slip Op 01555
Regular Panel Decision
Mar 03, 2016

Lois v. Flintlock Construction Services, LLC

Plaintiff Jorge Lois, an employee of J&R Glassworks, Inc., sued Flintlock Construction Services, LLC and Bass Associates, LLC, after slipping and falling on a plastic tarp and broken concrete at a construction site. The defendants moved for summary judgment to dismiss Lois's Labor Law § 241 (6) claim and their contractual indemnification claim against J&R. The court denied both motions, finding issues of fact regarding Bass Associates' role as an owner, the defendants' responsibility for the hazardous condition, and the applicability of Industrial Code §§ 23-1.7 (e) (1) and (2). Additionally, J&R failed to demonstrate an absence of factual issues concerning its notice of the hazardous condition, thereby upholding the contractual indemnification claim against it.

Labor Law § 241 (6)Industrial Code § 23-1.7 (e)Summary JudgmentContractual IndemnificationConstruction AccidentSlip and FallThird-Party ActionOwner LiabilityGeneral Contractor LiabilityHazardous Condition
References
7
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