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

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. 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. 2020 NY Slip Op 00066 [179 AD3d 427]
Regular Panel Decision
Jan 07, 2020

Matter of Katherine U. (Jose U.)

The Appellate Division, First Department, affirmed a Family Court order finding Jose U. sexually abused his child, Katherine U., and dismissed the appeal from the fact-finding order. The court upheld the use of closed-circuit television for the child's testimony, balancing the father's due process rights with the child's emotional well-being, as contemporaneous cross-examination by counsel was permitted. An affidavit from the child's social worker sufficiently established that in-court testimony would cause emotional harm. Furthermore, Jose U.'s prior criminal convictions for predatory sexual assault, rape, incest, and sexual abuse, involving the child, collaterally estopped him from contesting the abuse allegations in the family court petition.

Child abuseSexual abuseFamily LawAppellate ProcedureDue ProcessChild TestimonyClosed-circuit televisionCollateral EstoppelCriminal ConvictionEvidence Admissibility
References
3
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. ADJ9778324
Regular
Nov 08, 2017

JAIRO RAMOS vs. JTS JOSE TREE SERVICE, INC., JOSE MIGUEL SOTO, DANIEL SOTO, UNINSURED EMPLOYERS BENEFITS TRUST FUND

This case involves a workers' compensation claim where the applicant sustained an admitted industrial injury. The primary issue is determining the identity of the employer(s), with allegations of joint ownership/operation between JTS Jose Tree Service, Inc., Jose Miguel Soto, and Daniel Soto. Jose Soto's petition for reconsideration was dismissed as untimely and procedurally deficient. Daniel Soto's petition was granted because the original findings lacked evidentiary support and the record required further development regarding employment status and potential licensing issues. The case is remanded to the trial level for further proceedings.

Workers Compensation Appeals BoardJTS Jose Tree ServiceJose Miguel SotoDaniel SotoUninsured Employers Benefits Trust FundFindings of FactOrder of DeferralPetition for ReconsiderationJoint EmployersSubstantial Shareholder
References
19
Case No. No. 92
Regular Panel Decision
Nov 25, 2019

Jose Rivera v. State of New York

This New York Court of Appeals case addresses the State's vicarious liability for an assault committed by correction officers on an inmate. The inmate, Jose Rivera, was brutally attacked by Officer Michael Wehby and restrained by other officers, Femia and LaTour. The Court of Claims and Appellate Division found Wehby's actions were outside the scope of employment. The Court of Appeals affirmed, holding that Wehby's unprovoked and excessive force was a significant departure from his duties, thus precluding vicarious liability under respondeat superior. The dissenting judges argued that there were triable issues of fact regarding whether the other officers, who restrained Rivera, acted within the scope of their employment, potentially believing they were maintaining prison order.

Respondeat SuperiorVicarious LiabilityCorrectional Officer MisconductInmate AssaultScope of Employment DoctrineSummary Judgment AffirmationExcessive ForceCorrection Law ViolationsIntentional TortsAppellate Review
References
45
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. 533820
Regular Panel Decision
Apr 21, 2022

In the Matter of the Claim of Jose Perez

Claimant Jose Perez had an established claim for work-related injuries. A section 32 waiver agreement, including a payment of $300,000 and a Medicare Set-Aside (MSA) annuity, was approved by the Workers' Compensation Board in 2019. Perez's subsequent attempts to withdraw from the agreement were deemed untimely by the Board. However, the Board issued an amended decision deferring record development for 90 days, allowing the parties to negotiate a new agreement to clarify inconsistent MSA terms. The employer and carrier appealed this amended decision to the Supreme Court, Appellate Division, Third Judicial Department. The Appellate Division dismissed the appeal as interlocutory, ruling that the Board's decision did not finally resolve all substantive issues and was therefore not a proper subject for immediate appellate review.

Workers' Compensation LawSection 32 Waiver AgreementMedicare Set-Aside AnnuityUntimely WithdrawalInterlocutory DecisionAppellate ReviewFinality of OrderProcedural DefermentNegotiated SettlementClaim Settlement
References
5
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