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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
Jul 01, 1999

Spitzer v. Kings Plaza Shopping Center of Flatbush Avenue, Inc.

The plaintiff, Sara Spitzer, appealed an order from the Supreme Court, Kings County, which granted summary judgment to defendants Kings Plaza Shopping Center of Flatbush Avenue, Inc., and Germonds Properties Corporation. Spitzer had suffered personal injuries from a slip and fall incident at the shopping center, allegedly due to a maintenance worker. The defendants presented evidence that an independent contractor, not their employees, performed the cleaning services. The court found no intrinsic danger in the cleaning activity and no proof of defendant control over the contractor's work. Consequently, the defendants were not held liable for the independent contractor's alleged negligence, and the order dismissing the complaint against them was affirmed.

Personal InjuryPremises LiabilityIndependent ContractorSummary JudgmentAppellate ReviewNegligenceSlip and FallProperty Owner LiabilityMaintenance ServicesConcurring Opinion
References
2
Case No. MISSING
Regular Panel Decision

Stop & Shop Supermarket Co. v. United Food & Commercial Workers' Union Local 342

Plaintiff Stop & Shop Supermarket Co., LLC ("Stop & Shop") sought a preliminary injunction to prevent Defendant United Food and Commercial Workers’ Union Local 342 ("Local 342" or "the union") from proceeding with an arbitration demand. The arbitration involves Stop & Shop's unilateral implementation of the "LMS system," an electronic system for managing inventory and manpower, which the union alleges violates their collective bargaining agreement (CBA). Stop & Shop argues the arbitration clause in the CBA does not cover the LMS system. The Court asserted jurisdiction under the Labor Management Relations Act. Applying the principles from the "Steelworkers Trilogy," the court found the CBA's arbitration clause to be broad and determined that the union presented colorable arguments that the dispute regarding the LMS system implicates provisions related to "Prior Privileges" and "technological changes" in the CBA, as well as hours and wages. The court concluded that it could not say with "positive assurance" that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Consequently, the court denied Stop & Shop's request for a preliminary injunction, allowing the arbitration to proceed.

Labor ArbitrationCollective BargainingPreliminary InjunctionArbitrabilityLabor DisputeLMS SystemUnion RightsEmployer Management RightsFederal CourtStatutory Interpretation
References
11
Case No. 2019 NY Slip Op 00333 [168 AD3d 1240]
Regular Panel Decision
Jan 17, 2019

Matter of Vazquez v. Skuffy Auto Body Shop

Luis Vazquez, an auto body technician, sustained a work-related back injury in 2013 and received workers' compensation benefits. His benefits were suspended in November 2015, and upon his application for reinstatement, the carrier alleged a violation of Workers' Compensation Law § 114-a due to undisclosed work for a landscaping business. Initially, a Workers' Compensation Law Judge found no violation, but the Workers' Compensation Board reversed this decision, determining that Vazquez knowingly made material misrepresentations about his return to work and was subject to mandatory disqualification of benefits from April 25, 2016, to December 28, 2016, and future indemnity benefits after December 29, 2016. The Appellate Division, Third Department, affirmed the Board's decision, finding substantial evidence supported the Board's determination that Vazquez violated Workers' Compensation Law § 114-a by making false representations and omissions regarding his work activity to obtain benefits. The court also found no abuse of discretion in the Board's imposition of a penalty disqualifying him from future indemnity benefits, citing a pattern of deceit.

Workers' Compensation Law § 114-aFraudulent MisrepresentationDisqualification of BenefitsUndisclosed Work ActivityCredibility AssessmentSubstantial EvidenceAppellate ReviewWorkers' Compensation BoardIndemnity BenefitsLandscaping Business
References
5
Case No. ADJ10041209
Regular
Mar 16, 2017

Sergio Riffo vs. Simha Management Corp, State Compensation Insurance Fund

The Appeals Board rescinded sanctions imposed by a WCJ for alleged "judge shopping" because the sanctioned parties were not afforded proper notice and an opportunity to be heard. The WCJ's charge of "judge shopping" was too broadly defined and did not encompass all of the reasons subsequently cited in the WCJ's report for the sanctions. Given the procedural deficiencies and the underlying facts, the Board exercised its discretion to avoid further proceedings. However, applicant's representatives were admonished that future failures to maintain proper representation documentation could lead to sanctions.

Labor Code § 5813CCR 10561Judge shoppingSanctionsReconsiderationHearing RepresentativeAttorney representationDue processNotice and opportunity to be heardAdmonition
References
5
Case No. MISSING
Regular Panel Decision

Peninsula National Bank v. Allen Carpet Shops, Inc. (In Re Allen Carpet Shops, Inc.)

The creditors' committee moved for reargument and reconsideration of a previous court decision that granted summary judgment in favor of Peninsula National Bank (PNB) against Allen Carpet Shops, Inc., the debtor in a Chapter 11 reorganization. PNB sought administrative priority for various payroll account overdrafts. The court reaffirmed the summary judgment for a $19,545.16 portion of PNB's claim and clarified that a $12,684.17 pre-petition overdraft constituted a general unsecured claim. However, the court identified several unanswered material facts concerning a $37,892.92 portion of PNB's claim, which involved checks drawn pre-petition but honored post-petition. Consequently, the court warranted a rehearing specifically on this disputed portion of the claim, effectively granting the committee's motion for reargument in part.

BankruptcyChapter 11 ReorganizationAdversary ProceedingSummary JudgmentReargument MotionAdministrative Expense PriorityWage PriorityDebtor-in-PossessionOverdraftsCreditors' Committee
References
9
Case No. BGN 63300; BGN 63301 BGN 63302; BGN 63303
Regular
Mar 06, 2008

HARDISTENE HOWARD vs. SOUTHERN CALIFORNIA, RTD; TRAVELERS

The applicant filed a "Petition the Court for Judge Dismissal" alleging a violation of Labor Code section 5312 by the Workers' Compensation Judge. The Board treated this as a petition for disqualification, but dismissed it because it lacked the required affidavit of disqualification and did not state grounds for disqualification under Code of Civil Procedure section 641.

Petition for disqualificationLabor Code section 5311Petition for removalLabor Code section 5310WCAB Rule 10452Mandatory settlement conferenceWCJWorkers' Compensation Appeals BoardUnrepresented applicantProof of service
References
0
Case No. ADJ1775896 (RDG 0101688), ADJ2010679 (RDG 0104042)
Regular
Nov 28, 2012

RICHARD SEILER vs. CARDIOLOGY ASSOCIATES OF NORTHERN CALIFORNIA, STATE COMPENSATION INSURANCE FUND

The applicant, Richard Seiler, petitioned to recuse the judge, alleging prejudice and improper rulings on evidence and medical treatment requests. The Workers' Compensation Appeals Board (WCAB) reviewed the applicant's filings and the judge's report. The WCAB denied the disqualification petition, finding no evidence of bias. The applicant will have the opportunity to raise these issues at trial and, if necessary, file a petition for reconsideration.

Recusal petitionJudge JonesLabor Code section 5311WCAB Rule 10452Chiropractic QMEExclusion of evidencePrescribing physicianHormone replacementMandatory settlement conferencePetition for reconsideration
References
0
Case No. ADJ1941485 (VNO 0263845) ADJ4137418 (VNO 0270976) ADJ1018222 (MON 0140131)
Regular
Dec 15, 2008

GERTRUDE CHISM vs. K-MART/SEARS HOLDING CORPORATION, Permissibly Self-Insured Administered by SEDGWICK CLAIMS MANAGEMENT SERVICES

The Appeals Board dismissed the defendant's petition to remove WCJ Zarett as moot due to his retirement, and denied the request for a commissioner's hearing on sanctions as premature. The Board remanded the case to the trial level for a full evidentiary hearing on the defendant's allegations regarding the applicant's attorneys, as these factual issues are best addressed by a new Workers' Compensation Judge. The defendant's numerous petitions for removal, vacating hearings, and stays were largely dismissed or denied.

Workers' Compensation Appeals BoardGertrude ChismK-Mart/Sears Holding CorporationSedgwick Claims Management ServicesPetition for Commissioner's HearingRemoval of Judge ZarettVacate HearingStay ProceedingsImposition of SanctionsGuardian Ad Litem
References
1
Case No. ADJ1813115
Regular
Sep 17, 2012

JOSE GALARRETA vs. H.R. STAFFING, STATE COMPENSATION INSURANCE FUND

This case involves a worker seeking to reopen his workers' compensation claim based on alleged new and further disability. The applicant argued that a Qualified Medical Evaluator's report used by the judge was improperly admitted. However, the Board denied reconsideration, finding the applicant waived his objection by not raising it until trial, effectively permitting "doctor shopping." The Board also affirmed the administrative law judge's reliance on the evaluator's report over the treating physician's, finding no compelling reason to overturn the determination of no new and further disability.

new and further disabilitypetition to reopenqualified medical evaluatorLabor Code section 4062.3(j)waiver of objectioninvited errorTelles TransportFajardoCounty of Sonomamedical evaluator timeliness
References
3
Case No. MISSING
Regular Panel Decision

Jung v. Skadden, Arps, Slate, Meagher & Flom, LLP

Jonathan Jung sued his former employer Skadden, Arps, Slate, Meagher & Flom, LLP, alleging race and national origin discrimination and retaliation under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. Skadden moved to compel arbitration and stay litigation, citing an arbitration agreement Jung signed upon employment. Jung opposed, arguing Skadden waived its right to arbitrate by engaging in protracted litigation, specifically a Rule 12(b)(6) motion, and causing prejudice through excessive cost, delay, and forum shopping. The court, presided over by Judge Mukasey, found that Jung had not suffered sufficient prejudice to establish waiver. The court noted that a Rule 12(b)(6) motion does not create substantive prejudice akin to discovery advantages, and mere pretrial expense and delay are not enough to constitute waiver. The court also rejected Jung's forum shopping argument based on Second Circuit precedent. Consequently, Skadden's motion to compel arbitration and stay the action was granted.

DiscriminationRace DiscriminationNational Origin DiscriminationRetaliationEmployment LawArbitration AgreementFederal Arbitration ActWaiver of ArbitrationRule 12(b)(6) MotionPrejudice
References
22
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