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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 04791
Regular Panel Decision
Sep 27, 2023

Walsh v. Kenny

The plaintiff, Patrick Walsh, appealed an order from the Supreme Court, Suffolk County, which granted summary judgment to the defendant, Edward Kenny, dismissing Walsh's causes of action for common-law negligence and violations of Labor Law §§ 200 and 241 (6). Walsh was injured while performing carpentry work on Kenny's backyard deck. The Appellate Division, Second Department, reversed the lower court's order. The Court found that Kenny failed to establish, prima facie, that he did not direct or control Walsh's work, which is required for the homeowner's exemption under Labor Law § 241 (6) to apply. Similarly, Kenny failed to eliminate triable issues of fact regarding his authority to supervise or control the work, precluding summary judgment on the Labor Law § 200 and common-law negligence claims.

Personal injurysummary judgmenthomeowner's exemptionLabor Law § 200Labor Law § 241(6)safe place to workmeans and methodsproperty owner liabilityconstruction workerappellate review
References
16
Case No. MISSING
Regular Panel Decision

Zuckerman v. Volume Services America, Inc.

Plaintiff Gail Zuckerman initiated a disability discrimination lawsuit under New York State law against her former employer, Volume Services America (VSA), and her union, Local 37. The defendants removed the case to federal court, arguing preemption by Section 301 of the Labor Relations Act and seeking dismissal based on the statute of limitations. The court denied VSA's summary judgment motion, ruling that Zuckerman's claims against the employer did not necessitate interpreting the collective bargaining agreement and thus were not preempted. Conversely, the court granted Local 37's motion, finding that the claims against the union amounted to a breach of the duty of fair representation, which is preempted by federal law and time-barred by a six-month limitation period. Consequently, the case against VSA was remanded to the Supreme Court of the State of New York, County of Queens, as federal jurisdiction no longer applied to that portion of the dispute.

Disability DiscriminationLabor Relations ActSection 301 PreemptionCollective Bargaining AgreementStatute of LimitationsSummary JudgmentDuty of Fair RepresentationRetaliatory DischargeHostile Work EnvironmentConstructive Discharge
References
23
Case No. MISSING
Regular Panel Decision

Bache & Co. v. Roland

This interpleader action was initiated by a brokerage house (plaintiff) to resolve conflicting claims over a fund consisting of money and shares. Defendants Roland and Zuckerman, partners in Hel-Mar Enterprises, both laid claim to the fund. Subsequently, Continental Insurance Company intervened as an additional defendant-claimant, alleging that Roland had defrauded them by claiming securities were lost, receiving replacement certificates, and then pledging the original 'lost' securities as collateral, forcing Continental to redeem them at a cost of $11,759.40. The court granted Continental partial summary judgment, awarding them the interpleaded fund. The remaining issue was Continental's cross-claim against Roland for the outstanding amount of the alleged fraud. The court, interpreting the cross-claim as invoking pendent jurisdiction, ultimately dismissed it without prejudice, citing considerations of judicial economy and the fact that the federal issue had been resolved, leaving solely a state claim between two New York citizens.

Interpleader ActionFraud ClaimPendent JurisdictionCross-Claim DismissalJudicial EconomyFederal Statutory InterpleaderSecurities DisputeInsurance ClaimCivil ProcedureDiscretionary Jurisdiction
References
7
Case No. MISSING
Regular Panel Decision

Rehman v. State University of New York at Stony Brook

Jamil Rehman, M.D., a Pakistani-American, 51-year-old Muslim urologist, sued SUNY Stony Brook and individual defendants (Shirley Strum Kenny, Richard Fine, M.D., and Wayne Waltzer, M.D.) alleging discrimination and retaliation. He claimed he was denied promotion, received less favorable pay and leave terms compared to a non-minority counterpart, and his research and surgical activities were hindered. Rehman also alleged he faced retaliation after complaining about discriminatory treatment, billing practices, and patient safety issues. The defendants filed a motion to dismiss. The court partially dismissed Rehman's age discrimination claims (without prejudice), his § 1981 claim (with prejudice as a separate cause of action), breach of contract, and waste claims (all with prejudice); however, it denied the defendants' motion to dismiss Rehman's Title VII and NYSHRL retaliation claims, and his § 1983 claims for violations of § 1981, the First Amendment, and the Due Process clause of the Fourteenth Amendment, allowing them to proceed.

Employment DiscriminationRetaliationAge DiscriminationRace DiscriminationReligious DiscriminationNational Origin DiscriminationFirst Amendment RightsDue Process ClauseMotion to DismissCivil Rights
References
55
Case No. ADJ12229389
Regular
Sep 19, 2022

YOLANDA MEDINA vs. ZUCKERMAN FAMILY FARMS CORP., CALIFORNIA AGRICULTURAL NETWORK SELF-INSURED GROUP, INTERCARE

The Workers' Compensation Appeals Board has vacated its prior order granting reconsideration. This action was taken because the defendant, Zuckerman Family Farms Corp., withdrew its Petition for Removal/Reconsideration. Consequently, the Board dismissed the defendant's petition without addressing its merits. This decision finalizes the Findings of Fact, Orders, and Opinion on Decision issued on December 17, 2021.

WCABReconsiderationRemovalPetitionVacatedDismissedFindings of FactOpinion on DecisionApplicantDefendant
References
0
Case No. ADJ2506855 (RDG 0044877) ADJ1687185 (RDG 0032808)
Regular
Aug 24, 2009

Kenny Smith vs. MODERN BUILDING COMPANY, STATE COMPENSATION INSURANCE FUND, ANDERSON & ASSOCIATES, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for CALIFORNIA COMPENSATION, BROADSPIRE

This case involves successive spinal injuries to Kenny Smith. CIGA seeks relief as administrator for the 1990 injury, arguing it's not a covered claim as SCIF provides "other insurance." The Appeals Board granted CIGA's petition, finding SCIF is indeed other available insurance for the same injury. SCIF is appointed administrator and is entitled to a $14,667.67 credit against its liability, stemming from the applicant's prior third-party recovery for the 1986 injury.

CIGASCIFReconsiderationAdministratorCovered ClaimsOther InsuranceLabor Code Section 3861Spine InjuryJoint and Several LiabilityInsolvent Insurer
References
15
Case No. ADJ13650693
Regular
Mar 15, 2023

KENNY LOFTON vs. CLEVELAND GUARDIANS, LOS ANGELES DODGERS, TEXAS RANGERS, ACE AMERICAN INSURANCE, SEDGWICK CLAIMS MANAGEMENT SERVICES

This case concerns Kenny Lofton's workers' compensation claim against several baseball teams, including the Los Angeles Dodgers and Texas Rangers. The defendants sought reconsideration of the finding of subject matter jurisdiction, arguing the contracts were not made in California. However, the Workers' Compensation Appeals Board denied reconsideration, adopting the judge's report. The judge found that oral agreements made in California while Lofton was physically present, even with some terms yet to be finalized, established sufficient connection for California jurisdiction. The ruling relies on California Labor Codes and established case law regarding contract formation for employment.

Workers' Compensation Appeals BoardPetition for ReconsiderationSubject Matter JurisdictionContract of HireLabor Code Sections 3600.5Labor Code Section 5305Alaska PackersBowen v. Workers' Comp. Appeals Bd.Janzen v. Workers' Comp. Appeals Bd.Globe Cotton Oil Mills
References
15
Case No. MISSING
Regular Panel Decision

Kenny v. Bacolo

An employee received a compensation award under the Longshoremen’s and Harbor Workers’ Compensation Act. Defendant Horowitz attempted to maintain a third-party action for contribution against the employer, Atlantic Repair Co., Inc., arguing he was not bound by the federal award due to lack of notice. The court held that while collateral estoppel did not apply, Horowitz could not controvert the federal award in a State court, as the exclusive means for setting aside such orders is through federal proceedings. Consequently, Atlantic's motion to dismiss Horowitz's third-party complaint was properly granted. Furthermore, third-party complaints against co-employee Bacolo and lessor Decker Tank & Equipment Company were also dismissed due to Bacolo's statutory immunity and the derivative nature of Decker Tank's liability.

Longshoremen’s and Harbor Workers’ Compensation ActThird-Party ActionContribution ClaimCollateral EstoppelExclusive RemedyFederal Compensation OrderState Court JurisdictionCo-employee ImmunityVicarious LiabilityDismissal of Third-Party Complaint
References
12
Case No. ADJ1644458 (SJO 0259802)
Regular
Apr 29, 2011

KENNY PHAN vs. TOBAR INDUSTRIES

In this workers' compensation case, the applicant sought reconsideration after the WCJ found his Labor Code section 132a claim was waived in a Compromise and Release (C&R) agreement. The applicant argued that paragraph 9 of the C&R form, requiring initials for included issues, did not show a waiver of the 132a claim, despite a conflicting provision in an addendum. The Appeals Board found ambiguity in the C&R documents and resolved it in favor of the applicant, amending the WCJ's finding to state no waiver occurred. The case was returned for further proceedings on the 132a claim.

Workers' Compensation Appeals BoardReconsiderationCompromise and ReleaseLabor Code section 132awaiverAddendumambiguityOffer of Proofhearsayburden of proof
References
0
Case No. OAK 0334678, OAK 0334680
Regular
Jul 21, 2008

KENNY AUBREY vs. COLOR TECH CORPORATION

This case involves an applicant who sustained industrial injuries to both knees, resulting in concurrent temporary total disability. The Workers' Compensation Appeals Board (WCAB) affirmed a prior award of temporary disability indemnity, applying the 104-week/two-year limitation under Labor Code section 4656(c)(1). This application was justified by the AME's finding that both injuries contributed to the applicant's concurrent temporary disability, aligning with precedent established in *Foster v. Workers' Comp. Appeals Bd.*.

Workers' Compensation Appeals BoardColor Tech Corporationindustrial injuriesboth kneesarthroscopic surgeriesleft kneeright kneejoint replacementtemporarily totally disabledaggregate disability payments
References
1
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