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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

Diamond D Construction Corp. v. New York State Department of Labor (DOL) Bureau of Public Works

This decision addresses Diamond D Construction Corp.'s motion for reconsideration, challenging the court's prior denial of a preliminary injunction. The court re-evaluates its stance on Eleventh Amendment immunity, concluding that Diamond D's claim for prospective injunctive relief against the Department of Labor's enforcement actions is not barred, distinguishing previous cases like Tekkno and Yorktown. While affirming the applicability of the Younger abstention doctrine, the court acknowledges that a 'narrow' exception for bad faith or harassment by the DOL might apply. To resolve factual disputes regarding whether the DOL acted in bad faith or violated Diamond D's substantive due process rights, the court grants the motion for reconsideration in part and orders evidentiary hearings.

Federal CourtEleventh AmendmentYounger AbstentionDue ProcessProcedural Due ProcessSubstantive Due ProcessMotion for ReconsiderationPreliminary InjunctionState SovereigntyEvidentiary Hearing
References
17
Case No. MISSING
Regular Panel Decision

Nagel v. D & R REALTY CORP.

Bruce Nagel, an elevator safety inspector, suffered injuries after slipping on oil during a two-year safety test. He and his wife sued D & R Realty Corp., the building owner, alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), particularly Industrial Code § 23-1.7 (d). The claims under §§ 200 and 240 (1) were withdrawn. Both the Supreme Court and the Appellate Division granted summary judgment to the defendant, ruling Nagel's work was routine maintenance, not construction, demolition, or excavation under Labor Law § 241 (6). The Court of Appeals affirmed, holding that Labor Law § 241 (6) protections do not extend to maintenance work outside the construction context.

Elevator accidentLabor LawSection 241(6)Routine maintenanceConstruction workDemolition workExcavation workIndustrial CodeSafety inspectionBuilding owner liability
References
6
Case No. CA 16-00663
Regular Panel Decision
Feb 10, 2017

INTERNATIONAL UNION (DISTRICT) v. NEW YORK STATE DEPT. OF LABOR

This case involves an appeal concerning the interpretation of Labor Law § 220 (3-e) in New York, specifically regarding the prevailing wage for glazier apprentices on public works projects. Plaintiffs, a consortium of unions, individuals, and businesses, challenged the New York State Department of Labor's (DOL) interpretation that glazier apprentices performing work classified for another trade (like ironworkers) must be paid at the journeyman rate for that other trade. The Supreme Court initially dismissed the plaintiffs' complaint, upholding the DOL's position. However, the Appellate Division reversed this decision, ruling that Labor Law § 220 (3-e) permits glazier apprentices registered in a bona fide program to be paid apprentice rates, irrespective of whether the work performed falls under a different trade classification. The court concluded that the DOL's interpretation was contrary to the plain meaning of the statute and thus not entitled to deference.

Apprenticeship ProgramsLabor LawPublic Works ProjectsGlaziersIronworkersPrevailing WageStatutory InterpretationNew York State Department of LaborDeclaratory JudgmentAppellate Review
References
33
Case No. 2016 NY Slip Op 08114
Regular Panel Decision
Dec 01, 2016

Matter of Kent D. (Rachel D.)

Petitioner Kent D. appealed an order from Family Court, New York County, which denied his motion for a forensic evaluation and granted the cross motion to dismiss his petition for visitation with his child. The background reveals that in February 2008, Kent D. stabbed Rachel D., the mother, seven times in front of their child, leading to his conviction for assault and child endangerment and an 11-year prison sentence. A 19-year order of protection was issued, prohibiting contact with the child. The Family Court had previously awarded custody to the mother, and a 2012 divorce judgment affirmed no visitation rights for Kent D. The Appellate Division affirmed the Family Court's decision, finding that Kent D. failed to make an evidentiary showing of changed circumstances required for a visitation hearing, and his claims of completing an anger management program were unsubstantiated. The court also noted the child's continuing symptoms of post-traumatic stress disorder and desire not to see him.

Visitation RightsChild CustodyOrder of ProtectionDomestic ViolenceAssault ConvictionChanged CircumstancesForensic EvaluationAppellate ReviewFamily LawPost-Traumatic Stress Disorder
References
2
Case No. 64 Civ. 663
Regular Panel Decision

Curry v. P. D. Marchessini, Inc.

This case involves an action brought by the administratrix of a longshoreman named Curry against P. D. Marchessini, Inc., seeking damages for wrongful death caused by the alleged unseaworthiness of the defendant's vessel and cargo in Savannah, Georgia. The jurisdiction for this case was based on diversity of citizenship. The defendant filed a motion for judgment on the pleadings, asserting that the action was barred by Georgia's two-year statute of limitations. The court found that Curry's death occurred on October 30, 1961, and the action was not initiated until March 3, 1964, falling outside the two-year statutory period as per Georgia Code Annotated § 3-1004. The plaintiff's arguments attempting to toll the statute of limitations, including claims of the defendant's absence from Georgia or recommencement after a prior action, were rejected by the court. Consequently, the defendant's motion for judgment on the pleadings was granted, barring the action.

Statute of LimitationsWrongful DeathUnseaworthinessLongshoremanDiversity JurisdictionJudgment on the PleadingsGeorgia LawMaritime LawTolling StatuteFederal Court
References
7
Case No. ADJ4655433 (STK 0183897) ADJ4135432 (STK 0183898)
Regular
Sep 08, 2010

CARMELA GARCIA vs. E & J GALLO WINERY, P.S.I.

This case concerns a request for supplemental attorney's fees following an unsuccessful petition for writ of review by defendant E & J Gallo Winery. The Court of Appeal previously granted the applicant's request for fees under Labor Code § 5801 and remanded the matter. The applicant's attorney requested $3,150.00 for services related to answering the petition, which the defendant did not dispute in amount, only in principle. The Workers' Compensation Appeals Board found the requested amount reasonable and issued a supplemental award of $3,150.00 in attorney's fees.

Workers' Compensation Appeals BoardLabor Code § 5801attorney's feessupplemental awardpetition for writ of reviewremittiturreasonable basisapplicantdefendantE & J Gallo Winery
References
1
Case No. 2021 NY Slip Op 00461
Regular Panel Decision
Jan 28, 2021

Matter of Executive Cleaning Servs. Corp. v. New York State Dept. of Labor

Executive Cleaning Services Corporation and Cef Saiz, the petitioners, challenged a determination by the Commissioner of Labor, alleging they failed to pay prevailing wages for cleaning services provided to the Ossining Public Library. The Department of Labor initiated an investigation following an employee complaint and concluded that the contract was subject to the prevailing wage provisions of Labor Law article 9. Petitioners argued the library was not a 'public agency' as defined by Labor Law § 230 (3), thus exempting their contract from prevailing wage requirements. The Appellate Division, Third Department, ultimately agreed with the petitioners, finding that despite its public function and ties to the school district, the Ossining Public Library does not fit the statutory definition of a public agency under Labor Law § 230 (3). Consequently, the Commissioner's determination was annulled, the petition granted, and the action for declaratory judgment severed and remitted to the Supreme Court.

Prevailing Wage LawLabor Law Article 9Public Agency DefinitionOssining Public LibraryEducation CorporationCPLR Article 78 ProceedingDeclaratory Judgment ActionBuilding Service ContractsSchool District Public LibraryAdministrative Law
References
18
Case No. ADJ7826039
Regular
Nov 07, 2014

Jason Horton vs. Oakland Raiders, ACE American Insurance

In this workers' compensation case, the Appeals Board granted reconsideration to address the defendant's contentions. The Board rescinded the finding of industrial psychiatric injury, finding it barred by the six-month employment rule under Labor Code section 3208.3(d). The Board affirmed the original decision regarding the 15% increase in permanent disability pursuant to Labor Code section 4658(d). Ultimately, the applicant's permanent disability rating was adjusted to 64%, and attorney fees were modified accordingly.

Industrial injuryProfessional football playerCumulative traumaPsychiatric injurySix-month ruleLabor Code § 3208.3(d)Employment contractActual servicePermanent disabilityLabor Code § 4658(d)
References
0
Case No. ADJ7702084
Regular
Jan 23, 2012

WILLIAM BRAGA vs. CITY OF SEBASTOPOL, REDWOOD EMPIRE MUNICIPAL INSURANCE FUND

This case concerns whether the City of Sebastopol is entitled to a 15% reduction in permanent disability payments to William Braga, a fire captain who sustained hearing loss. The defendant argues this reduction is permissible under Labor Code section 4658(d)(3)(A) because they offered Braga regular work. However, the Workers' Compensation Appeals Board (WCAB) denied reconsideration, finding the statute inapplicable because Braga lost no time from work and continued his regular duties. The WCAB reasoned that Labor Code section 4658(d) is intended to incentivize employers to return injured workers to employment, a purpose not served when the employee never stopped working.

Workers Compensation Appeals BoardCity of SebastopolRedwood Empire Municipal Insurance FundFindings and AwardPetition for ReconsiderationFire CaptainCumulative PeriodHearing LossPermanent DisabilityScheduled Rate
References
4
Case No. ADJ1499047 (SAC 0273786)
Regular
Feb 07, 2011

ROBERT DOVE vs. CONTRACTOR'S LABOR POOL/PRODUCTION FRAMING, CALIFORNIA INSURANCE GURANTEE ASSOCIATION, LIBERTY MUTUAL

The Appeals Board granted the applicant's petition for removal, reversing a prior order that denied rejoining CIGA. The applicant sustained a shoulder and spine injury and claims psychiatric sequelae, alleging general employment by Contractors Labor Pool (CLP), insured by CIGA via California Compensation Insurance Company in liquidation, and special employment by Production Framing Systems (PFS), insured by Liberty Mutual. Because the applicant may have worked for CLP for over six months but less than six months for PFS, CIGA is a necessary party to determine liability for potential psychiatric injury, as Labor Code section 3208.3(d) has specific six-month employment requirements. The Board rejoined CIGA to protect its due process rights and promote judicial economy, allowing it to participate in the adjudication of these complex liability issues.

Workers' Compensation Appeals BoardPetition for RemovalMandatory Settlement ConferenceGeneral EmploymentSpecial EmploymentCalifornia Insurance Guarantee Association (CIGA)Labor Code Section 3208.3(d)Psychiatric InjuryLiberty Mutual Insurance CompanyContractors Labor Pool
References
1
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