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

Case No. 2019 NY Slip Op 01077
Regular Panel Decision
Feb 13, 2019

Matter of Simon

This disciplinary proceeding concerns attorney Alan Michael Simon, who was previously removed from his judicial position by the New York Court of Appeals for extensive judicial misconduct. The misconduct included bullying, ethnic smearing, poor temperament, engaging in a physical altercation, repeatedly threatening officials with contempt without cause, and improperly interfering in a political election. The Grievance Committee for the Ninth Judicial District brought three charges of professional misconduct against Simon, alleging conduct prejudicial to the administration of justice, conduct adversely reflecting on his fitness as a lawyer, and conduct involving dishonesty, deceit, fraud, and misrepresentation. The court found the charges sustained under the doctrine of collateral estoppel, given the prior findings by the Court of Appeals. Despite Simon's arguments for mitigation, including his good faith and election as mayor, the court deemed his actions "truly egregious" and noted his continued lack of insight. Consequently, Alan Michael Simon was disbarred, effective immediately.

Attorney DisciplineJudicial MisconductDisbarmentProfessional MisconductCollateral EstoppelGrievance CommitteeAppellate DivisionRules of Professional ConductEthical ViolationsAttorney and Counselor-at-Law
References
4
Case No. MISSING
Regular Panel Decision
Oct 22, 1980

Hilowitz v. Hilowitz

In a negligence action for personal injuries, the plaintiff appealed an order from the Supreme Court, Queens County, dated October 22, 1980. The order, issued by Justice Hyman, had denied the plaintiff's motion to dismiss the defense of collateral estoppel. The appellate court affirmed the order, holding that an arbitration award, even without judicial confirmation, can serve as a basis for res judicata and collateral estoppel if there was a final determination on the merits. The court referenced Kilduff v Donna Oil Corp. and distinguished Hana Heating & Air Conditioning Co. v Sheet Metal Workers Int. Assn. All other contentions raised by the plaintiff were deemed to be without merit.

NegligencePersonal InjuryAppealCollateral EstoppelRes JudicataArbitration AwardJudicial ConfirmationFinal DeterminationAppellate DecisionSupreme Court Order
References
4
Case No. MISSING
Regular Panel Decision

Fletcher v. Rodriguez

This case addresses motions by both the defendant to dismiss the complaint and by the plaintiff to restore the action to the trial calendar and for summary judgment dismissing the defendant's defense of estoppel. The dispute stems from a motor vehicle accident on January 13, 2011, where the plaintiff, after a denial of claim from the defendant's insurer (Allstate), received a conditional settlement of $25,000 from her own insurer (USAA) under an uninsured motorist clause. The settlement required reimbursement to USAA if the plaintiff successfully recovered from the person responsible for the accident. The defendant argued that the plaintiff had irrevocably waived her right to sue by accepting this settlement, citing the doctrines of election of remedies and judicial estoppel. The court ultimately found these doctrines inapplicable, noting the conditional nature of the settlement which contemplated further action against the tortfeasor, and that the defendant failed to prove the plaintiff took an inconsistent position in a prior proceeding. Consequently, the plaintiff's motion for partial summary judgment on the issue of judicial estoppel was granted, and the defendant's motion to dismiss was denied.

Motor Vehicle AccidentUninsured MotoristConditional SettlementElection of Remedies DoctrineJudicial Estoppel DoctrineSummary Judgment MotionMotion to DismissCPLR 3211CPLR 3212Insurance Policy Interpretation
References
25
Case No. 05-01136
Regular Panel Decision

Fox v. Bank Mandiri (In Re Perry H. Koplik & Sons, Inc.)

Bank Mandiri, the defendant in an underlying bankruptcy adversary proceeding, sought leave to appeal a Bankruptcy Court order that denied its motion to dismiss. The Bankruptcy Court's order, issued on October 23, 2006, pertained to a complaint filed by Michael S. Fox, the Trustee for Perry H. Koplik & Sons, Inc. ("Koplik"). The dispute originated from a letter of credit issued by Bank Mandiri's predecessor to secure Koplik's purchase of equipment from an Indonesian company. Following a default and subsequent multi-year litigation in Indonesian courts, the matter moved to U.S. bankruptcy proceedings. Bank Mandiri's motion to dismiss was based on claims of res judicata, comity, collateral estoppel, judicial estoppel, and lack of personal jurisdiction. The District Court, applying the standards of 28 U.S.C. § 1292(b), denied Bank Mandiri's motion for leave to appeal, concluding that there were no controlling questions of law with substantial grounds for difference of opinion regarding comity, res judicata, or judicial estoppel that would warrant an interlocutory appeal.

BankruptcyAdversary ProceedingInterlocutory AppealMotion to DismissComityRes JudicataJudicial EstoppelLetter of CreditInternational LawIndonesian Courts
References
20
Case No. MISSING
Regular Panel Decision
Dec 06, 2001

Orr v. City of New York

The plaintiff, employed as a marine oiler by the City of New York, sustained personal injuries after slipping on oil on a barge. He initiated an action under the Jones Act, seeking damages, but the City contested his status as a 'seaman,' arguing the barge was not a 'vessel in navigation.' Initially, the Supreme Court denied the City's summary judgment motion due to judicial estoppel. However, the appellate court reversed this decision, concluding that the barge functioned primarily as a work platform, was moored, and any transportation role was merely incidental, thereby precluding the plaintiff from seaman status under the Jones Act. Additionally, the appellate court found the doctrine of judicial estoppel to have been improperly applied in this context.

Personal InjuryJones ActSeaman StatusVessel in NavigationJudicial EstoppelSummary JudgmentAppellate ReviewMaritime LawWorkers' CompensationBarge
References
10
Case No. 2024 NY Slip Op 00187
Regular Panel Decision
Jan 17, 2024

McGlynn v. Burns & Harris, Esq.

In this legal malpractice action, William McGlynn sued attorneys Burns & Harris, Esq., and Allison R. Keenan for failing to notify insurance carriers in a prior personal injury case, preventing him from collecting a judgment. The defendants moved for summary judgment, arguing judicial estoppel applied due to McGlynn's workers' compensation claim with an inconsistent injury theory. The Supreme Court granted summary judgment to the defendants and denied McGlynn's cross-motion to strike their answer for spoliation of evidence. On appeal, the Appellate Division, Second Department, reversed the summary judgment for the defendants, finding that multiple proximate causes for injuries are possible and the judicial estoppel doctrine might not preclude recovery. The court affirmed the denial of McGlynn's cross-motion for spoliation of evidence, determining he failed to show an obligation to preserve the evidence or a culpable state of mind.

legal malpracticesummary judgmentjudicial estoppelspoliation of evidenceproximate causeinsuranceappellate reviewattorney's dutycausationdamages
References
15
Case No. 95 Civ. 4856 (SS)
Regular Panel Decision
Mar 12, 1996

Petition of Treco

Appellants The Bank of New York and JCPL Leasing Corp. appealed a Bankruptcy Court's Modified Order, signed March 12, 1996, which broadened an earlier injunction to fully encompass all proceedings against the debtor, Meridien International Bank Limited (MIBL). They argued the injunction was overly broad, that the Bankruptcy Court failed to make specific findings of fact, arrogated a non-core determination, ignored judicial estoppel, and misapplied automatic stay provisions to an interpleader action. The District Court affirmed the Modified Order, finding that the injunction was necessary to protect the debtor's estate and that the Bankruptcy Court had proper jurisdiction to adjudicate or issue recommendations on related issues. The court also determined that the Bankruptcy Court's findings were sufficient and that neither judicial estoppel nor automatic stay interpretations limited its authority under Section 304 to fashion an appropriate remedy, especially given changed circumstances.

BankruptcyInjunctionAppealCore ProceedingsNon-Core ProceedingsJudicial EstoppelAutomatic StayDebtor's EstateConstructive TrustJurisdiction
References
23
Case No. NA-XXXXX-XX/XX
Regular Panel Decision

In re Jonathan C.

This case involves an Article 10 child abuse and neglect proceeding initiated by the Administration for Children’s Services (ACS) against respondent mother Kimberly F. and her former paramour, Mr. O., concerning three children. The court addresses two motions: one from ACS to compel testimony from Ms. F.’s mental health providers regarding her insight and parenting capabilities, which Ms. F. and her therapists sought to quash citing therapist-patient privilege and HIPAA. The second motion is from Brian C., Ms. F.’s former paramour, seeking to intervene as Jonathan C.'s father, which was previously disavowed by him. The court denied Ms. F.'s motion to quash the subpoenas, compelling the therapists' testimony while limiting disclosure of therapeutic records. It also denied Mr. C.'s motion to intervene, citing the doctrine of judicial estoppel due to his prior inconsistent statements regarding paternity. However, the court granted his alternative request for DNA testing to definitively establish Jonathan's biological father, prioritizing the accurate determination of paternity over judicial estoppel.

Child abuseChild neglectTherapist-patient privilegeHIPAAMental Hygiene LawFamily Court ActSubpoena quashIntervention motionPaternity disputeDNA testing
References
26
Case No. MISSING
Regular Panel Decision

Kilcer v. Niagara Mohawk Power Corp.

Joseph Kilcer, a volunteer firefighter and former employee at a hazardous waste site, suffered a toxic brain injury. He filed two workers' compensation claims: one against Columbia County Cause and Origin Team (CCCOT) for carbon monoxide exposure at a fire scene, and another against his employer (third-party defendant) for chemical exposure at the remediation site. The Workers’ Compensation Board found a compensable injury against CCCOT, ruling the injury was solely caused by the fire scene exposure. Kilcer and his wife subsequently filed a tort action against Niagara Mohawk Power Corporation, Environmental Resources Management, Inc., and Blasland, Bouck & Lee, Inc., alleging his brain injury was due to chemical exposure at the remediation site. Defendants and the third-party defendant moved for summary judgment, arguing judicial estoppel. The Supreme Court denied these motions, but on appeal, the court reversed this decision. The appellate court applied the doctrine of judicial estoppel, finding Kilcer was barred from asserting an inconsistent position in the tort action regarding the cause of his injury, having previously maintained in the workers' compensation proceeding that the fire scene was the sole cause. Consequently, the complaint and third-party complaint were dismissed.

Judicial EstoppelInconsistent PositionsWorkers' Compensation ClaimToxic Brain InjuryCarbon Monoxide PoisoningHazardous Waste Remediation SiteSummary JudgmentAppellate ReviewVolunteer Firefighter BenefitsCausation
References
7
Case No. MISSING
Regular Panel Decision

Singh v. Ross

The plaintiffs appealed an order from Queens County, dated September 26, 2003, which denied their motion for nunc pro tunc judicial approval of a settlement under Workers’ Compensation Law § 29 (5). This law requires either carrier consent or judicial approval within three months of a settlement to avoid forfeiture of future workers' compensation benefits. While judicial approval can be sought beyond the three-month period if the settlement is reasonable, the delay is not due to the party's fault, and the carrier is not prejudiced, the Supreme Court denied the motion. The court found the over one-year delay in seeking approval was attributable to the plaintiffs' own fault or neglect. The appellate court affirmed this decision.

Workers' CompensationJudicial ApprovalSettlementNunc Pro TuncDelay in ApplicationCourt DiscretionAppellate ReviewPersonal InjuryThird-Party ActionForfeiture of Benefits
References
6
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