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

Case No. 2023 NY Slip Op 00892
Regular Panel Decision
Feb 15, 2023

Velasquez v. Sunstone Red Oak, LLC

Plaintiff Marianella Velasquez initiated a putative class action against Sunstone Red Oak, LLC, alleging violations of Labor Law article 6 concerning unpaid service charges. Velasquez, who worked as a server through a staffing agency, claimed to be an employee of Sunstone. The Supreme Court denied both Velasquez's motion for sanctions and Sunstone's cross-motion for summary judgment. Upon review, the Appellate Division reversed the Supreme Court's order regarding the cross-motion, finding that Sunstone successfully demonstrated Velasquez was not their employee, and Velasquez failed to provide sufficient counter-evidence. Consequently, the Appellate Division granted Sunstone's cross-motion for summary judgment, dismissing the complaint, and deemed Velasquez's appeal academic.

Labor Law Article 6Service ChargesGratuitiesEmployer-Employee RelationshipStaffing AgencySummary JudgmentSpoliation of EvidenceAppellate ReviewIndependent ContractorControl Test
References
9
Case No. MISSING
Regular Panel Decision

Velasquez v. Goldwater Memorial Hospital

Plaintiff Iris Velasquez sued her employers, New York City Health and Hospitals Corporation (HHC) and Elizabeth Lockhart, alleging national origin discrimination and retaliation under Title VII, 42 U.S.C. § 1983, and New York human rights laws. Velasquez, a Hispanic patient representative, claimed she was fired for being Hispanic and for complaining about an alleged English-only language policy at Goldwater Memorial Hospital. Defendants moved for summary judgment, asserting Velasquez's probationary status and documented performance issues as legitimate, non-discriminatory reasons for her termination. The court granted the defendants' motion, finding that demonstrating an English-only policy alone was insufficient to prove discriminatory intent based on national origin. The retaliation claims were also dismissed, as Velasquez failed to show her employer was aware her complaints were about conduct prohibited by Title VII, or to establish a causal link for her Section 1983 claim.

National Origin DiscriminationTitle VIIRetaliationSummary JudgmentEnglish-Only PolicyDisparate TreatmentPrima Facie CaseMcDonnell Douglas Burden-ShiftingFirst Amendment RightsSection 1983
References
25
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. 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. 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
Case No. 532385
Regular Panel Decision
Nov 18, 2021

In the Matter of the Claim of Jose Urdiales

Claimant Jose Urdiales appealed a decision from the Workers' Compensation Board that denied his claim for workers' compensation benefits, alleging an occupational disease due to chemical exposure as a construction worker for Durite Concepts Inc/Durite USA. The employer and its carrier disputed the claim, including Urdiales's employment status and the nature of his duties. A Workers' Compensation Law Judge (WCLJ) credited the employer's president's testimony over Urdiales's account, leading to the disallowance of the claim. The WCLJ's findings were affirmed by the Workers' Compensation Board, which found the employer's witness more credible regarding the claimant's work history and rejected medical evidence based on Urdiales's less credible account. The Appellate Division, Third Judicial Department, affirmed the Board's decision, emphasizing that the Board is the sole arbiter of witness credibility and that its determination of no causally-related occupational disease was supported by substantial evidence.

Occupational DiseaseAppellate DivisionCredibility DeterminationSubstantial EvidenceChemical ExposureRespiratory IllnessEmployment HistoryFact DeterminationBoard AffirmationWorkers' Compensation Benefits
References
8
Case No. CV-22-2294, CV-22-2299
Regular Panel Decision
Jun 27, 2024

In the Matter of the Claim of Jose Reyes Bonilla

Jose Reyes Bonilla and Marvin Reyes Bonilla, carpenters, filed workers' compensation claims after being injured in a motor vehicle accident while traveling to a job site in an employer-provided van. The Workers' Compensation Board affirmed decisions that established their claims against XL Specialty Insurance, ruling that their injuries arose out of and in the course of their employment. XL Specialty appealed, arguing its policy did not cover commuting injuries and that it was not the proper carrier. The Appellate Division affirmed the Board's decisions, finding XL Specialty failed to preserve its challenge and that the injuries were compensable due to the employer's control over transportation. The court also concluded that XL Specialty's policy exclusion was inapplicable as the transportation was incidental to the project.

Workers' CompensationMotor Vehicle AccidentEmployment InjuriesCourse of EmploymentEmployer Provided TransportationInsurance Coverage DisputeWrap-up PolicyAppellate ReviewPreclusionPenalties
References
17
Case No. 2024 NY Slip Op 05574 [232 AD3d 700]
Regular Panel Decision
Nov 13, 2024

Velasquez v. RS JZ Driggs, LLC

Plaintiff Blaines Santos Velasquez, an ironworker, was injured during construction when temporary plywood flooring dislodged, causing him to fall onto a rebar column. He initiated a personal injury action under Labor Law § 241 (6). The defendants, RS JZ Driggs, LLC, and Foremost Contracting and Building, LLC, moved for summary judgment to dismiss the complaint. The Supreme Court denied their motion regarding claims predicated on 12 NYCRR 23-1.5 (c) (3) and 23-1.7 (e) (2). The Appellate Division affirmed this denial, finding triable issues of fact existed concerning whether the plywood flooring was sound and operable as per 12 NYCRR 23-1.5 (c) (3), and if the rebar constituted a 'sharp projection' under 12 NYCRR 23-1.7 (e) (2), clarifying that the 'integral to the work' exception for tripping does not apply when an injury results from falling onto such an object.

Personal injuryConstruction accidentLabor LawIndustrial CodeSummary judgmentTriable issue of factPlywood flooringRebarSafety devicesSharp projections
References
9
Case No. GOL 0099213
Regular
Oct 24, 2007

DEREK VELASQUEZ vs. JOSE VELASQUEZ, STATE COMPENSATION INSURANCE FUND

In this workers' compensation case, the applicant sought reconsideration of a decision barring his temporary disability claim under Labor Code Section 4656(c)(1). The applicant conceded the claim was barred but argued the statute was unconstitutional, violating equal protection. The Workers' Compensation Appeals Board denied reconsideration, adopting the Administrative Law Judge's report which stated the Board lacks jurisdiction to determine the constitutionality of statutes.

Workers' Compensation Appeals BoardDerek VelasquezJose VelasquezState Compensation Insurance FundGOL 0099213ReconsiderationAdministrative Law JudgeGreener v. Workers' Comp. Appeals Bd.Industrial InjuryCervical Spine
References
1
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