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

Case No. 2022 NY Slip Op 06475 [210 AD3d 884]
Regular Panel Decision
Nov 16, 2022

Kreutzberg v. Law Offs. of John Riconda, P.C.

The plaintiff, Thomas Kreutzberg, commenced an action to recover damages for legal malpractice against the Law Offices of John Riconda, P.C. The plaintiff alleged that the defendants failed to obtain the required consent from his workers' compensation carrier for the settlement of a no-fault and personal injury claim in 2009, violating Workers' Compensation Law § 29 (5). The defendants moved to dismiss the complaint as time-barred under CPLR 3211 (a) (5). The Supreme Court, Suffolk County, granted the motion, ruling that the three-year statute of limitations for legal malpractice accrued in 2009 and had expired by the time the action was commenced in 2020. The Appellate Division, Second Department, affirmed the Supreme Court's order, concluding that the defendants successfully established the action was time-barred and the plaintiff failed to raise a question of fact in opposition.

Legal MalpracticeStatute of LimitationsCPLR 3211 (a) (5)Workers' Compensation Law § 29 (5)Appellate DivisionSuffolk CountyTime-barred claimConsent RequirementNo-fault claim settlementPersonal injury action settlement
References
11
Case No. ADJ7836773
Regular
Jul 09, 2012

Francisco Flores vs. Superior Carpet Works, Inc., Preferred Employers

The Workers' Compensation Appeals Board granted reconsideration of a sanctions order against the Law Offices of John A. Mendoza. The Appeals Board is also notifying the law firm of its intention to impose additional sanctions. This is due to alleged misrepresentations of fact in the petition for reconsideration and violations of Appeals Board rules regarding attaching previously filed documents. The law firm is granted twenty days to show cause why these additional sanctions should not be imposed.

WORKERS' COMPENSATION APPEALS BOARDSANCTIONSRECONSIDERATIONDEPOSITION ATTORNEY FEESLABOR CODE SECTION 5710LABOR CODE SECTION 5813APPEALS BOARD RULESDUE PROCESSMISREPRESENTATIONSFAILURE TO RESPOND
References
0
Case No. 2025 NY Slip Op 02370 [237 AD3d 1139]
Regular Panel Decision
Apr 23, 2025

Whitfield v. Law Enforcement Employees Benevolent Assn.

The plaintiff, John "Divine G" Whitfield, doing business as Divine G Entertainment, appealed an order from the Supreme Court, Kings County, which granted the defendants' motion to dismiss his amended complaint. Whitfield had sued Law Enforcement Employees Benevolent Association (LEEBA) and its members for fraud and unjust enrichment, alleging inadequate payment for website and paralegal services. The Appellate Division affirmed the Supreme Court's decision, finding that Whitfield failed to adequately allege injury for fraud and that civil conspiracy claims stand or fall with the underlying tort. The court also determined that defendants were not unjustly enriched and that the plaintiff failed to establish an employer-employee relationship necessary for Labor Law and FLSA claims. Additionally, claims for intentional and negligent infliction of emotional distress were dismissed for failing to meet rigorous standards, and piercing the corporate veil was not adequately pleaded.

FraudUnjust EnrichmentEmployment RelationshipQuantum MeruitLabor LawFLSAEmotional DistressCorporate VeilPiercing Corporate VeilPleading Sufficiency
References
26
Case No. MISSING
Regular Panel Decision
Jan 26, 2006

In re John T.

Holliswood Care Center appealed an order awarding attorneys' fees against it in a guardianship proceeding for John T. The Supreme Court had initially found John T. competent but awarded fees to the petitioner, temporary guardian, and Mental Hygiene Legal Service, citing Holliswood's "reprehensible actions" in detaining Mr. T. Holliswood argued it was not given notice that the guardianship hearing would determine attorney's fees against it and was not afforded an opportunity to present evidence regarding its actions, which it claimed were based on safety concerns, not Mr. T.'s competency. The appellate court reversed the order, holding that the Supreme Court improperly proceeded with the hearing and improvidently awarded attorneys' fees without proper notice and opportunity to be heard for Holliswood. Furthermore, the court found that the award of attorneys' fees against Holliswood was not authorized by Mental Hygiene Law article 81 nor justified under common law exceptions.

GuardianshipAttorneys' FeesMental Hygiene LawIncapacitated PersonAppellate ProcedureDue ProcessNotice RequirementNursing Home DetentionElderly CareCompetency Evaluation
References
17
Case No. MISSING
Regular Panel Decision

In re John Lack Associates, LLC

John Lack Associates, LLC, an agency placing waiters and bartenders, was audited by the Department of Labor, which determined these workers were employees, making John Lack liable for unemployment insurance contributions. This determination was upheld by an Administrative Law Judge and the Unemployment Insurance Appeals Board. On appeal, the court reversed the Board's decision, finding insufficient evidence of John Lack's control over the workers. The court noted that workers could refuse jobs, often worked for other agencies, provided their own equipment, and were supervised and directed by the client at events, who also paid their remuneration through John Lack. The case was remitted to the Board for further proceedings.

Employer-employee relationshipIndependent contractorUnemployment insurance contributionsAgency controlRight to controlRemittedAppellate reviewSubstantial evidenceUnemployment Insurance Appeal BoardLabor Law
References
5
Case No. CA 15-01567
Regular Panel Decision
Apr 29, 2016

ST. JOHN, KATHLEEN v. WESTWOOD-SQUIBB PHARMACEUTICALS, IN

Plaintiff Kathleen St. John initiated a Labor Law and common-law negligence action for injuries sustained while preparing lighting equipment in a parking lot owned by the defendant, Westwood-Squibb Pharmaceuticals, Inc. The plaintiff alleged the accident occurred due to debris, leading to a trip or slip. Defendant's motion for summary judgment dismissing the complaint was initially denied by the Supreme Court. On appeal, the Appellate Division modified the order by partially granting the defendant's motion, dismissing the Labor Law § 241 (6) cause of action premised on alleged violations of 12 NYCRR 23-1.7 (d), (e) (1), and (e) (2), finding these regulations inapplicable to the case facts. However, the court affirmed the denial of summary judgment for the Labor Law § 241 (6) cause of action based on 12 NYCRR 23-2.1 (b) and the Labor Law § 200 and common-law negligence claims, citing unresolved issues of control and constructive notice.

Labor LawCommon-Law NegligenceSummary JudgmentPremises LiabilityConstruction SiteDangerous ConditionOut-of-Possession OwnerCollateral EstoppelAppellate ReviewStatutory Interpretation
References
24
Case No. MISSING
Regular Panel Decision
Jul 14, 1998

Higgins v. 1790 Broadway Associates

Plaintiff, an employee of O & P Management Corp., suffered injuries while attempting to repair a freight elevator using a defective ladder. The Supreme Court initially granted summary judgment, dismissing claims against all defendants: Central Elevator, 1790 Broadway Associates, John Phufas, and O & P Management. On appeal, the order was modified. The appellate court affirmed the dismissal of claims against Central Elevator and the Labor Law § 240 (1) claim against 1790 Broadway Associates and Phufas. However, it denied the cross-motion by 1790 Broadway Associates and John Phufas to dismiss claims of common-law negligence and Labor Law § 200, reinstating these claims. The court reasoned that it was foreseeable a worker might use the defective ladder, which constituted a dangerous condition, and that the owners failed to demonstrate lack of notice regarding this unsafe condition.

Elevator AccidentDefective LadderCommon-Law NegligenceLabor Law § 200Labor Law § 240(1)Premises LiabilitySummary JudgmentActual NoticeConstructive NoticeWorkplace Safety
References
16
Case No. 2019 NY Slip Op 05608
Regular Panel Decision
Jul 11, 2019

Graves v. Stanclift, Ludemann, McMorris & Silvestri, P.C.

Plaintiff John A. Graves commenced a legal malpractice action against the defendant law firm, Stanclift, Ludemann, McMorris & Silvestri, P.C. Graves alleged that the defendant attorneys failed to provide adequate representation in an underlying action, specifically by neglecting discovery, not presenting evidence, and failing to advance his counterclaim. The Supreme Court partially denied the defendants' motion to dismiss the complaint, allowing two claims of legal malpractice to proceed. The Appellate Division, Third Department, affirmed this decision, concluding that Graves' allegations, when liberally construed and accepted as true, sufficiently stated a cause of action for legal malpractice.

Legal MalpracticeAppellate ReviewMotion to DismissSummary JudgmentAttorney NegligenceDiscovery FailureCounterclaimProximate CauseDamagesProfessional Duty
References
7
Case No. MISSING
Regular Panel Decision

Farrell v. Dolce

John P. Farrell, a former City of White Plains firefighter, initiated a CPLR article 78 proceeding to challenge the termination of his General Municipal Law § 207-a (2) benefits. Farrell, who retired due to a line-of-duty injury, had voluntarily opted for Retirement and Social Security Law § 384-d benefits, which include mandatory retirement at age 62. The City of White Plains subsequently ceased his supplemental payments on his 62nd birthday, citing General Municipal Law § 207-a (2). Farrell argued that the Age Discrimination in Employment Act (ADEA) preempted the age-based termination and that he was denied due process because the benefit was terminated without a hearing. The court, presided over by Justice John R. LaCava, found that Farrell’s section 207-a (2) benefits fell under the 'continued benefit payments' exception of the Older Workers Benefit Protection Act (OWBPA), making the ADEA inapplicable. The court concluded that the respondents' determination to terminate benefits was not arbitrary, capricious, or an abuse of discretion, and that Farrell was not denied due process given the legal basis of the decision. Therefore, Farrell's petition was denied.

CPLR Article 78General Municipal Law § 207-aAge Discrimination in Employment Act (ADEA)Older Workers Benefit Protection Act (OWBPA)Disability BenefitsFirefighter BenefitsMandatory Retirement AgeDue ProcessStatutory InterpretationPublic Safety
References
13
Case No. CV-22-2032
Regular Panel Decision
Mar 14, 2024

In the Matter of the Claim of John Deliso

This case involves an appeal from decisions of the Workers' Compensation Board regarding a claim filed by John Deliso, a maintenance supervisor, for work-related repetitive stress injuries. The claim for bilateral carpal tunnel syndrome and repetitive stress injuries to wrists and shoulders was established. However, the employer alleged a violation of Workers' Compensation Law § 114-a, providing surveillance videos that contradicted Deliso's reported functional abilities during permanency evaluations by his treating physician, Christopher Kyriakides. An independent medical examination by Sean Lager also found no functional impairment and symptom magnification. The Workers' Compensation Law Judge, affirmed by the Board, found that Deliso made material misrepresentations regarding his functional abilities, thus violating Workers' Compensation Law § 114-a. The Appellate Division affirmed the Board's decision, concluding that substantial evidence supported the finding of material misrepresentations and upholding the discretionary disqualification from future wage replacement benefits due to the egregious nature of the deception.

Workers' CompensationFraudMisrepresentationSurveillance EvidenceMedical EvaluationSchedule Loss of UseDisqualificationOccupational DiseaseAppellate ReviewMaterial Fact
References
12
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