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

Case No. 09-CV-8140 (KMK)
Regular Panel Decision
Mar 31, 2011

In Re Dayton

Plaintiffs Michael Dayton and Barbara Nieves, individually and as guardian for their five infant children, brought action against the City of Middletown, its police officers, Orange County, and the Department of Social Services Orange County (DSS) alleging federal and state law violations. The claims stemmed from a November 2008 incident involving an alleged attack by a felon and subsequent police actions, followed by Family Court proceedings where neglect findings were entered against the parents. The court granted DSS's motion to dismiss with prejudice, finding it not a suable entity. Motions to dismiss the federal § 1983 Monell claims against Middletown and Orange County were granted without prejudice due to insufficient pleading of a municipal policy. State law claims against Orange County were dismissed without prejudice due to untimely notice of claim for adult plaintiffs, with infant claims requiring state court application. Claims arising from the Family Court's neglect finding and protective order were dismissed with prejudice under the Rooker-Feldman doctrine, but other allegations regarding Orange County's conduct during Family Court proceedings survived. The Middletown Officers' motion for summary judgment was denied without prejudice, citing insufficient factual inconsistencies for dismissal prior to discovery. Plaintiffs were given thirty days to file a Second Amended Complaint.

Civil Rights ViolationsFourth AmendmentEighth AmendmentFourteenth Amendment42 U.S.C. § 1983Motion to DismissSummary JudgmentRooker-Feldman doctrineMonell claimFailure to Train
References
98
Case No. MISSING
Regular Panel Decision
Apr 18, 2005

Melson v. Sebastiano

Plaintiff, an employee of Michael F. Sebastiano Construction, Inc., sustained injuries after falling through a roof during a replacement project. He initiated a common-law negligence and Labor Law action against Michael Sebastiano and Marie Sebastiano, who were the building owners. The Supreme Court initially granted summary judgment to Michael Sebastiano based on Workers’ Compensation Law § 29 (6), recognizing his co-employee status as the sole owner and officer of the corporation. However, the appellate court reversed the decision for Marie Sebastiano, an office manager, asserting her co-employee status alone did not confer immunity because her duties did not involve work site safety, and her duty of care stemmed from her property ownership. The court ultimately granted plaintiff partial summary judgment on liability against Marie Sebastiano under Labor Law § 240 (1), citing the absence of safety devices.

Workers' Compensation ImmunityCo-employee DoctrineProperty Owner LiabilityLabor Law § 240(1)Summary JudgmentAppellate ReviewPersonal InjuryRoof Fall AccidentCorporate Officer LiabilityOffice Manager Liability
References
8
Case No. CA 11-02000
Regular Panel Decision
Nov 09, 2012

OLSEN, MICHAEL JAMES v. KOZLOWSKI, SHIRLEY F.

Plaintiff Michael James Olsen commenced a Labor Law and common-law negligence action seeking damages for injuries sustained from falling during residence construction. Plaintiff moved for partial summary judgment on liability under Labor Law § 240 (1), while defendants Louis F. Kozlowski and Shirley F. Kozlowski (property owners) cross-moved for summary judgment dismissing the complaint. The Supreme Court granted dismissal against Louis F. Kozlowski and denied dismissal against Shirley F. Kozlowski, also granting plaintiff's motion against Shirley F. Kozlowski. The Appellate Division modified the order, denying plaintiff's motion in its entirety, finding a triable issue of fact regarding whether Shirley F. Kozlowski was an officer of the employer, which could bar the action under Workers' Compensation Law § 29 (6).

Personal InjuryLabor LawPremises LiabilitySummary JudgmentAppellate ReviewWorkers' CompensationOfficer LiabilityEmployer ImmunityConstruction AccidentFall from Height
References
20
Case No. 2022 NY Slip Op 06475 [210 AD3d 884]
Regular Panel Decision
Nov 16, 2022

Kreutzberg v. Law Offs. of John Riconda, P.C.

The plaintiff, Thomas Kreutzberg, commenced an action to recover damages for legal malpractice against the Law Offices of John Riconda, P.C. The plaintiff alleged that the defendants failed to obtain the required consent from his workers' compensation carrier for the settlement of a no-fault and personal injury claim in 2009, violating Workers' Compensation Law § 29 (5). The defendants moved to dismiss the complaint as time-barred under CPLR 3211 (a) (5). The Supreme Court, Suffolk County, granted the motion, ruling that the three-year statute of limitations for legal malpractice accrued in 2009 and had expired by the time the action was commenced in 2020. The Appellate Division, Second Department, affirmed the Supreme Court's order, concluding that the defendants successfully established the action was time-barred and the plaintiff failed to raise a question of fact in opposition.

Legal MalpracticeStatute of LimitationsCPLR 3211 (a) (5)Workers' Compensation Law § 29 (5)Appellate DivisionSuffolk CountyTime-barred claimConsent RequirementNo-fault claim settlementPersonal injury action settlement
References
11
Case No. MISSING
Regular Panel Decision

McLaurin v. New Rochelle Police Officers

Plaintiff Charles B. MeLaurin filed a pro se action under 42 U.S.C. § 1983 against numerous New Rochelle police officers and city officials, including Peter Kornas, Louis Falcone, Brian Fagan, David Lornegan, Edward Martinez, Dominic Procopio, Mayor Timothy Idoni, and the City of New Rochelle. MeLaurin alleged constitutional rights violations stemming from two arrests: one for assault on August 6, 2001, and another for criminal contempt on September 28, 2002. Defendants moved for judgment on the pleadings, asserting qualified immunity and failure to state a claim. The court granted dismissal with prejudice for most defendants, finding their actions objectively reasonable or lacking personal involvement, or due to plaintiff's failure to state a claim or comply with state law. Claims against Officers Lynch, Lore, Conca, Al-Fattaah, Kamau, and Navarette were dismissed without prejudice for lack of personal involvement. Officer Dina Lynn Moretti's motion was converted to one for summary judgment, giving the plaintiff 45 days to provide evidence regarding probable cause for the second arrest. State law claims were also dismissed due to non-compliance with New York General Municipal Law notice-of-claim requirements.

Excessive ForceFalse ArrestMalicious ProsecutionQualified ImmunityPro Se LitigationMunicipal LiabilityMonell ClaimFederal Rules of Civil Procedure 12(c)Federal Rules of Civil Procedure 56Civil Rights Violation
References
59
Case No. 2019 NY Slip Op 01728
Regular Panel Decision
Mar 12, 2019

O'Dwyer v. Law Offs. of Rex E. Zachofsky, PLLC

This case involves a fee-sharing dispute between Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P. (plaintiff) and The Law Offices of Rex E. Zachofsky, PLLC (defendant) concerning Workers' Compensation cases. The plaintiff moved to compel discovery, and the defendants moved for partial summary judgment on the breach of contract claim. The Supreme Court initially denied both motions. On appeal, the Appellate Division, First Department, modified the order by granting the plaintiff's discovery motion, allowing access to the Workers' Compensation Board's eCase system for referred cases. The court affirmed the denial of partial summary judgment for the defendants, noting that the breach of contract claim could not be resolved as a matter of law due to evidence of the plaintiff's firm's participation. An appeal and cross-appeal from a subsequent order denying reargument were dismissed as nonappealable.

Fee-sharing agreementBreach of contractRules of Professional ConductDiscovery disputeWorkers' Compensation casesAppellate reviewSummary judgmentAttorney responsibilityE-discoveryLegal ethics
References
3
Case No. MISSING
Regular Panel Decision

Mair-Headley v. County of Westchester

The petitioner, a correction officer, was terminated from her employment by the Westchester County Department of Corrections after being absent for over one year due to a nonoccupational injury, pursuant to Civil Service Law § 73. She challenged this determination through a CPLR article 78 proceeding, alleging denial of due process and violation of the Human Rights Law. The Supreme Court initially dismissed the due process claim and transferred the remaining issues to this Court. This Court confirmed the determination, finding that the petitioner received adequate pre-termination notice and a post-termination hearing, satisfying due process. Additionally, the Court concluded that the termination did not violate the Human Rights Law, as employers are not obligated to create new light-duty or permanent light-duty positions for accommodation.

Civil Service LawCPLR Article 78Due ProcessHuman Rights LawEmployment TerminationCorrection OfficerDisability AccommodationWestchester CountyAppellate ReviewPublic Employment
References
21
Case No. MISSING
Regular Panel Decision

M. Cristo, Inc. v. State of New York Office of General Services

This dissenting opinion by Staley, Jr., J. concerns the rejection of a low bid from a petitioner by the Office of General Services. The rejection was based on the petitioner's unresolved labor dispute with Laborers Local No. 190, which the Office of General Services feared would cause disruption and delay to the South Mall project, a 'time of the essence' contract. Staley, Jr., J. argues that the State's action was lawful, citing State Finance Law § 174 and previous cases that permit bid rejection in the best interests of the State, especially when a labor dispute threatens project completion. The dissent distinguishes this case from precedents involving mere threats of union action. However, the majority decision, which this opinion dissents from, reversed the judgment and ruled in favor of the petitioner.

Labor DisputeBid RejectionState ContractPublic WorksTime of EssenceJudicial ReviewAppellate DecisionProcurement LawNonunion WorkersProject Delay
References
3
Case No. 2015 NY Slip Op 07262
Regular Panel Decision
Oct 07, 2015

Westchester County Correction Superior Officers Ass'n v. County of Westchester

The case involves an action brought by the Westchester County Correction Superior Officers Association and several retired correction officers against the County of Westchester. The plaintiffs sought damages for an alleged breach of a collective bargaining agreement, claiming the county failed to provide benefits equivalent to Workers' Compensation Law for permanent disability. The Supreme Court, Westchester County, initially denied the defendants' motion to dismiss but later granted their motion for summary judgment, dismissing the complaint. The Supreme Court also denied the plaintiffs' cross-motion to amend their complaint. On appeal, the Appellate Division, Second Department, affirmed the Supreme Court's decision, concluding that no provision in the collective bargaining agreement mandated such payments and that the proposed amendment to the complaint lacked merit.

Collective Bargaining AgreementBreach of ContractSummary JudgmentWorkers' Compensation BenefitsLoss of Earning CapacityPermanent DisabilityLeave to Amend ComplaintAppellate ReviewAffirmationJudiciary Law
References
2
Case No. 2021 NY Slip Op 05607 [198 AD3d 843]
Regular Panel Decision
Oct 13, 2021

Walsh v. Knudsen

Michael A. Walsh, a police officer, sued fellow officers Ronald Knudsen and John Whalen, and the Incorporated Village of Larchmont, for personal injuries following a taser discharge. The Supreme Court granted Walsh leave to serve a late notice of claim and denied the defendants' motion to dismiss, also allowing Walsh to amend his complaint. The Appellate Division, Second Department, reversed these orders. The court found Walsh's claim meritless due to the exclusive remedy provisions of the Workers' Compensation Law for co-employee negligence, and any intentional tort claims were barred by the one-year statute of limitations. Consequently, the petition for leave to serve a late notice of claim was denied, the motion to dismiss was granted, and the cross-motion to amend the complaint was denied.

Personal InjuryPolice OfficerTaser IncidentLate Notice of ClaimGeneral Municipal LawWorkers' Compensation LawExclusive RemedyIntentional TortStatute of LimitationsAppellate Review
References
29
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