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

Case No. 528566
Regular Panel Decision
May 26, 2022

In the Matter of the Claim of Christine Kelly (Kelly, Kevin (dec'd)

Claimant Christine Kelly filed a claim for death benefits after her husband's death, alleging it was causally-related to his established asbestos-related occupational disease. Liability for the original disability claim had been transferred to the Special Fund for Reopened Cases in 2011. The employer argued the Special Fund should be liable for the death benefits claim. However, the Workers' Compensation Board and the Appellate Division, Third Judicial Department, affirmed that the death benefits claim was a new and distinct claim, accruing at the time of death in 2016. Therefore, its transfer to the Special Fund was precluded by Workers' Compensation Law § 25-a (1-a), as the Special Fund closed to new applications effective January 1, 2014, a ruling supported by Matter of Verneau v Consolidated Edison Co. of N.Y., Inc. The decision of the Workers' Compensation Board, ruling that liability did not shift to the Special Fund for Reopened Cases, was affirmed.

Workers' Compensation Law § 25-aSpecial Fund for Reopened CasesDeath Benefits ClaimOccupational DiseaseAsbestosisCausally Related DeathLiability TransferStatutory Cut-off DateAppellate DivisionThird Judicial Department
References
2
Case No. MISSING
Regular Panel Decision

North American Thought Combine, Inc. v. Kelly

Petitioner North American Thought Combine, Inc. (Thought) sought to confirm an arbitration award against Respondent Kathleen Kelly (Kelly) concerning a contract for exclusive representation of Kelly's artwork. The arbitrator had determined Thought had a continuing right to represent specific licensed properties and receive compensation, but the agreement for all works had expired. Kelly opposed the confirmation, arguing the federal court lacked subject matter jurisdiction as the amount in controversy did not meet the statutory requirement for diversity jurisdiction. The court agreed with Kelly, ruling that the value of the arbitration award itself, not the underlying arbitration claim, determines the amount in controversy for confirmation petitions. As Thought failed to provide competent proof that the value of its continuing rights exceeded $75,000, the court dismissed the petition for lack of federal subject matter jurisdiction.

Arbitration ConfirmationSubject Matter JurisdictionDiversity JurisdictionAmount in ControversyFederal Arbitration ActContract DisputeExclusive AgencyArtwork LicensingFederal Court DismissalSecond Circuit Precedent
References
8
Case No. MISSING
Regular Panel Decision

Kelly Kare, Ltd. v. O'ROURKE

Kelly Kare, Ltd., a Medicaid provider in Westchester County, sued the County after its contract was terminated without cause before its expiry. Kelly Kare alleged violations of federal and constitutional rights, including property and liberty interests, and anti-union bias as reasons for the termination. The court found no protected property interest in the contract's continuation nor a liberty interest due to 'stigmatization' without false information being released. Regarding the anti-union bias claim, the court determined that Kelly Kare failed to provide adequate evidentiary showing to warrant injunctive relief. Consequently, the motion for a preliminary injunction was denied, and prior restraining orders were dissolved.

Medicaid ProviderContract TerminationPreliminary InjunctionDue ProcessProperty InterestLiberty InterestAnti-union BiasSocial Security ActGovernment ContractsHealthcare Law
References
26
Case No. 136 F.Supp.3d 385
Regular Panel Decision
Jan 01, 2016

Kelly v. New York State Office of Mental Health

Plaintiff Sharon Kelly, a registered nurse, initiated this action against her former employers, the New York State Office of Mental Health and the Brooklyn Children’s Center, alleging disability discrimination and retaliation under the Rehabilitation Act of 1973. Kelly claimed she was discriminated against due to her anxiety, depression, and hypertension, citing instances like an alleged assault, failure to investigate, a hostile work environment, and constructive discharge. Defendants moved to dismiss the Second Amended Complaint for failure to state a claim. The court, presided over by Judge Matsumoto, determined that Kelly failed to plausibly allege she had a disability within the meaning of the Act or that she experienced adverse employment actions or a hostile work environment. Consequently, the defendants' motion to dismiss was granted, and all of Kelly's claims were dismissed with prejudice.

Disability DiscriminationRehabilitation ActEmployment RetaliationHostile Work EnvironmentConstructive DischargeMotion to DismissFederal Court DecisionMental Health ImpairmentPhysical ImpairmentPro Se Litigation
References
100
Case No. 2022 NY Slip Op 03952
Regular Panel Decision
Jun 16, 2022

Kelly v. State of New York

The Appellate Division, Third Department, affirmed the Court of Claims' dismissal of claimant James F. Kelly's action against the State of New York. Kelly, a part-time police officer, challenged his ineligibility to take a full-time officer exam due to exceeding an age limit imposed by Civil Service Law § 58. The court held that federal constitutional claims under 42 USC § 1983 cannot be asserted against the State in the Court of Claims for lack of subject matter jurisdiction. Furthermore, Kelly's Age Discrimination in Employment Act (ADEA) claim was dismissed as Civil Service Law § 58 falls within the ADEA's law enforcement exception, allowing age-based hiring for police officers. Finally, the claim based on Civil Service Law § 54 was also dismissed, as that statute permits reasonable age requirements for civil service positions.

Age DiscriminationCivil Service LawPolice OfficerCourt of ClaimsAppellate ReviewSubject Matter JurisdictionFederal Constitutional ClaimsADEA ExceptionLaw Enforcement ExemptionFailure to State a Cause of Action
References
13
Case No. 2018 NY Slip Op 02454 [160 AD3d 714]
Regular Panel Decision
Apr 11, 2018

Moody v. Kelly Drye & Warren, LLP

Plaintiff William Moody, a maintenance worker, sustained back injuries while lifting a heavy garbage bag during his employment for a nonparty providing property management services. He commenced a personal injury action against Kelley Drye & Warren, LLP (incorrectly sued as Kelly Drye & Warren, LLP), a tenant in the building where the accident occurred. The Supreme Court, Kings County, denied the defendant's motion for summary judgment dismissing the complaint. The Appellate Division, Second Department, reversed this decision, finding that the defendant established its prima facie entitlement to judgment by demonstrating the garbage bag was not over an agreed weight and the injury was an inherent risk of the plaintiff's work. The defendant's motion for summary judgment dismissing the complaint was therefore granted.

Personal InjurySummary JudgmentAppellate ReviewMaintenance WorkerWorkplace AccidentPremises LiabilityInherent RiskDuty of CareNegligenceTenant Liability
References
4
Case No. 2025 NYSlipOp 07291
Regular Panel Decision
Dec 24, 2025

Kelly v. RBSL Realty, LLC

Plaintiff John Kelly sustained injuries while working at a construction site in Medford in August 2014 when an 800-1,000-pound cement light pole base, being lowered by a crane, suddenly moved and struck him. He commenced an action against RBSL Realty, LLC, Landtek Group, Inc., Williams Scotsman, Inc. (the RBSL defendants), and John E. Potente & Sons, Inc., alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The Supreme Court denied summary judgment motions by all defendants. The Appellate Division, Second Department, modified the order by granting summary judgment to the RBSL defendants on the Labor Law § 200 and common-law negligence claims, finding they did not supervise or control the work. However, the court affirmed the denial of summary judgment for all defendants on the Labor Law §§ 240(1) and 241(6) claims, and for John E. Potente & Sons, Inc. on the Labor Law § 200 and common-law negligence claims.

Construction AccidentLabor LawElevation-Related HazardSafe Place to WorkSummary JudgmentContractual IndemnificationCommon-Law NegligenceSubcontractor LiabilityCrane OperationsIndustrial Code Violations
References
18
Case No. 2020 NY Slip Op 00935 [180 AD3d 1331]
Regular Panel Decision
Feb 07, 2020

Matter of Emma D. (Kelly v. D.)

This case involves two appeals concerning Emma D. In Appeal No. 1, the Ontario County Department of Social Services (DSS) initiated a neglect proceeding against the mother, Kelly V.(D.). The mother's motion to change venue to Monroe County was denied due to her refusal to provide her actual residence. In Appeal No. 2, the grandmother, Margarita D., commenced a custody proceeding against the mother. Custody was granted to the grandmother, supported by findings of extraordinary circumstances including the mother's neglect, unstable living situation, mental health issues, and failure to address the child's special needs. The Appellate Division, Fourth Department, unanimously affirmed both orders, including the supervised visitation arrangement between the mother and grandmother.

Child NeglectCustody DisputeFamily Court ActVenue ChangeExtraordinary CircumstancesSupervised VisitationParental RightsChild WelfareAppellate ReviewParental Fitness
References
9
Case No. 2018 NY Slip Op 08227
Regular Panel Decision
Nov 29, 2018

Matter of Kelly v. New York State Workers' Compensation Bd.

In 2006, claimant Grace Kelly established a workers' compensation claim for an occupational disease. The State Insurance Fund (SIF) repeatedly sought to transfer liability to the Special Fund for Reopened Cases, which was denied by Workers' Compensation Law Judges. The Workers' Compensation Board affirmed these denials and assessed $500 penalties against both SIF and its counsel, Walsh and Hacker, for filing an application for review without reasonable grounds. Walsh and Hacker appealed the penalty imposed against them to the Appellate Division, Third Department. The Appellate Division found insufficient evidence to support the Board's finding that Walsh and Hacker's application lacked reasonable grounds, and therefore reversed the penalty against them, modifying and affirming the Board's decision.

PenaltiesAppellate ReviewSpecial Fund for Reopened CasesWorkers' Compensation Law § 25-aWorkers' Compensation Law § 114-aAttorney SanctionsAdministrative LawBoard DecisionJudiciary Law § 431
References
4
Case No. ADJ8104549
Regular
Jul 05, 2017

MICHAEL KELLY vs. SUBSEQUENT INJURIES BENEFITS TRUST FUND

This case involves Michael Kelly seeking benefits from the Subsequent Injuries Benefits Trust Fund (SIBTF) based on a pre-existing disability that allegedly combined with his 2011 shoulder injury to create permanent total disability. The Workers' Compensation Appeals Board denied Kelly's petition for reconsideration, affirming the administrative law judge's finding. The Board found that the medical evidence Kelly relied upon was not substantial, particularly regarding his alleged pre-existing "labor disabling" condition. The Board concluded that the opinions of certain medical evaluators constituted impermissible retroactive prophylactic work restrictions, as Kelly's own account of his abilities at the time of injury contradicted their findings.

Subsequent Injuries Benefits Trust FundPermanent Partial DisabilityQualified Medical EvaluatorPre-existing DisabilityLabor DisablingRatable Permanent DisabilityRetroactive Prophylactic Work RestrictionApportionmentWCJ Report and RecommendationWorkers' Compensation Appeals Board
References
4
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