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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 00704 [213 AD3d 1050]
Regular Panel Decision
Feb 09, 2023

Matter of Paka (Same Day Delivery Inc.--Commissioner of Labor)

The case involves Jacques Paka, a delivery driver, who applied for unemployment insurance benefits after working for Same Day Delivery Inc. The Department of Labor initially determined Paka was an employee, making Same Day liable for contributions. The Unemployment Insurance Appeal Board initially overruled this, finding Paka to be an independent contractor. However, upon reconsideration requested by the Commissioner of Labor, the Board rescinded its prior decision and sustained the Department's original determination, finding an employment relationship. The Appellate Division, Third Department, affirmed the Board's decision, rejecting Same Day's arguments against the reopening of the case and finding substantial evidence to support the Board's conclusion that Same Day exercised sufficient control over Paka to establish an employment relationship. The Court also affirmed that these findings apply to similarly situated individuals.

Unemployment InsuranceIndependent ContractorEmployment RelationshipControl TestAppellate ReviewUnemployment Insurance Appeal BoardLabor LawUnemployment BenefitsDelivery DriverSubstantial Evidence
References
11
Case No. MISSING
Regular Panel Decision

Local 205, Community and Social Agency Employees'union v. Day Care Council of Ny Inc.

Local 205, Community and Social Agency Employees’ Union petitioned for confirmation and enforcement of an arbitration award against the Day Care Council of New York, Inc. (DCC). The award arose from employee grievances against the now-closed Georgia-Livonia Day Care Center. The Union argued that the award should be interpreted as binding upon DCC, a multi-employer bargaining association, despite not explicitly naming DCC for relief. DCC contended it was not a party to the arbitration agreement in the collective bargaining agreement (CBA) and therefore not obligated to arbitrate disputes involving itself. The court, after reviewing the CBA's language and the parties' past conduct, found no agreement by DCC to arbitrate. It also ruled that DCC's defenses were not time-barred by either the Federal Arbitration Act or New York C.P.L.R. § 7511, as these limitations do not apply to arguments challenging the existence of an arbitration agreement itself. Consequently, the Union's petition for confirmation and enforcement of the award against DCC was denied.

Arbitration AwardCollective Bargaining AgreementGrievance ProcedureMulti-Employer AssociationAgreement to ArbitrateFederal Arbitration ActLabor Management Relations ActConfirmation of AwardEnforcement of AwardSouthern District of New York
References
25
Case No. MISSING
Regular Panel Decision

Bumpus v. New York City Transit Authority

A transgender female plaintiff commenced an action against the New York City Transit Authority (NYCTA) and an unknown employee, 'Jane Doe,' for discrimination. The summons and complaint were filed in January 2007. While NYCTA was timely served, 'Jane Doe' was identified as Lorna Smith through internal disciplinary proceedings. Plaintiff's counsel served Smith in September 2007, 233 days after filing, leading Smith to move for dismissal due to untimely service. The Supreme Court granted the plaintiff an extension of the 120-day service period. This appellate court affirmed, ruling that although 'good cause' for the extension was not met due to lack of due diligence, the extension was warranted under the 'interest of justice' standard, considering the unique challenges of identifying and serving an unknown defendant, Smith's common surname, and the absence of prejudice to the defendant.

Jane DoeService of ProcessCPLR 306-bCPLR 1024Extension of Time to ServeGood Cause StandardInterest of Justice StandardUnknown Defendant IdentificationNew York City Human Rights LawPublic Authorities Law
References
62
Case No. No. 75 B 1735
Regular Panel Decision
Dec 21, 1976

In Re WT Grant Co.

This case from the U.S. District Court, S.D. New York, addresses three appeals related to the bankruptcy estate of W. T. Grant Company. Paul S. Berger, Trustee, and other plaintiffs-appellants challenged a Bankruptcy Court order dismissing their amended complaint. They also appealed the denial of their motions for a nunc pro tunc extension to file a notice of appeal and for reconsideration of that denial. District Judge Irving Ben Cooper granted the defendant trustee Charles G. Rodman's motion to dismiss the plaintiffs' initial appeal, ruling it was untimely filed 18 days after the Bankruptcy Court's order, exceeding the 10-day limit with a 30-day absolute maximum. The court affirmed the Bankruptcy Court's subsequent denials of the extension and reconsideration motions, emphasizing the strict interpretation of Bankruptcy Rules 801, 802, and 803 to ensure the expeditious and final administration of bankrupt estates.

Bankruptcy AppealTimelinessNotice of AppealExcusable NeglectJurisdictional DefectBankruptcy Rules 801Bankruptcy Rules 802Bankruptcy Rules 803Finality of OrdersTrustee in Bankruptcy
References
10
Case No. MISSING
Regular Panel Decision

Ficken v. Vocational Education & Extension Board of Suffolk

The petitioner sought review of her employment termination as a secretary by the Vocational Education and Extension Board of the County of Suffolk (VEEB) and requested reinstatement with back pay. She argued that she was discharged without the procedural protections afforded to civil servants under Civil Service Law § 75. VEEB contended that the petitioner was not covered by these protections. The Supreme Court ruled in favor of the petitioner, directing her reinstatement and back pay. The appellate court affirmed this decision, holding that the petitioner's position, though designated 'unclassified' by Suffolk County, did not fit any category under Civil Service Law § 35, thus classifying it as 'classified' and entitling her to § 75 protections. The court emphasized that the petitioner could not be denied these rights until a proper classification was established.

Civil Service LawEmployment TerminationReinstatementBack PayUnclassified ServiceClassified ServiceCivil Servant RightsDue ProcessArticle 78 ProceedingSuffolk County
References
5
Case No. MISSING
Regular Panel Decision
Mar 22, 1971

Claim of Pollak v. Robert Day, Inc.

The Workmen’s Compensation Board awarded disability benefits to a waiter under the Disability Benefits Law, finding him to be a 'shape-up worker' concurrently employed by Creative Caterers, Inc. and Robert Day, Inc. The claimant fell ill in February 1970 and was hospitalized, having worked for both employers in the same calendar week. Appellants challenged the board's finding of concurrent employment, citing the claimant's sporadic work record and arguing a lack of substantial evidence. The court affirmed the board's decision, asserting that concurrent employment and eligibility are questions of fact solely within the board's province, and its conclusion was supported by sufficient evidence. The court clarified that regular employment by the *same* employers within the same calendar week is not necessary; only regular and customary employment by more than one covered employer within the same week is required.

disability benefitsconcurrent employmentshape-up workerWorkmen's Compensation LawArticle 9substantial evidencequestion of factapportionmentemployer liabilityappellate review
References
0
Case No. MISSING
Regular Panel Decision

Busch v. Lewis

The court addressed two motions. Firstly, a motion for leave to appeal to the Court of Appeals was considered and subsequently denied, with the imposition of ten dollars in costs. Secondly, a motion seeking an extension of time to answer was reviewed. This motion was granted, allowing the respondent an additional five days to answer following the service of the order. The decision was rendered by a panel of judges including Martin, P. J., Townley, Glennon, Dore, and Cohn, JJ.

Leave to Appeal DeniedExtension of Time GrantedAppellate ProcedureCourt CostsService of Order
References
0
Case No. MISSING
Regular Panel Decision

Grimmer v. Lord Day & Lord

This case is a class action brought under the Worker Adjustment and Retraining Notification Act (WARN Act) by former employees of the law firm Lord Day & Lord, Barrett Smith. The employees alleged that the firm violated the WARN Act by closing its offices without providing the required sixty days' advance notice. Lord Day asserted statutory exceptions, specifically the 'faltering company' and 'unforeseeable business circumstances' exceptions, as affirmative defenses. Plaintiffs moved for partial summary judgment, contending that Lord Day's notice was insufficient as it merely recited the language of a statutory exception without providing a 'brief statement of the basis' for reducing the notice period. The court agreed with the plaintiffs, ruling that simply citing a statutory exception is inadequate and that specific factual basis is required, thus granting the motion and striking Lord Day's affirmative defenses.

WARN Actplant closingmass layoffnotice periodunforeseeable business circumstancesfaltering company exceptionaffirmative defensessummary judgmentstatutory interpretationemployee rights
References
2
Case No. MISSING
Regular Panel Decision

Same Day Delivery Service, Inc. v. Penn Star Insurance

Same Day Delivery Service, Inc. sued its insurer, Penn-Star Insurance Company, seeking a declaration that Penn-Star must cover a personal injury lawsuit filed against Same Day. Penn-Star moved for summary judgment, arguing Same Day failed to provide timely notice of the claim and that the incident was excluded from the policy. The Court granted Penn-Star's motion for summary judgment, concluding that Same Day's notice to Penn-Star was untimely by approximately ten months, or at least two months even under Same Day's arguments, and that the delay was inexcusable under New York law. Consequently, Penn-Star is not obligated to provide coverage.

Insurance LawSummary JudgmentTimely NoticePolicy CoverageDeclaratory JudgmentPersonal InjuryNew York LawInsurance Policy ExclusionCommercial General LiabilityAs Soon As Practicable Clause
References
39
Case No. ADJ3687516 (OXN 0126293)
Regular
Dec 22, 2011

RAMONA ANAYA, JUAN JOSE GONZALEZ, JESUS CERVANTES, JULIE ANN CABEZA, JULY SUESUE vs. PORT HUENEME UNIFIED SCHOOL DISTRICT, J. M. SMUCKERS, SPECIALTY RISK SERVICES, AMERICA TECHNOLOGIES, INC., AIG DOMESTIC CLAIMS, INC., GHL ENTERPRISES, CIGA, INTERCARE INSURANCE SERVICES, INC., PAULA INSURANCE COMPANY, MARY HEALTH OF THE SICK, REDISE INSURANCE, CRAWFY AND COMPANY, CITY OF LONG BEACH

Attorney M. Francesca Hannan sought reconsideration and disqualification of judges, alleging a conspiracy to dismiss her clients' liens and impose sanctions. The Board consolidated seven cases, designating *Anaya* as the master file, and ordered Hannan to provide a detailed factual response supporting her claims. Hannan requested a 120-day extension to file due to issues with mail delivery and requested a waiver for a lien trial transcript cost. The Board granted a 60-day extension for the response, but denied the waiver for the transcript cost, citing lack of justification and untimeliness of the bias allegation regarding the transcript.

Workers' Compensation Appeals BoardDisqualification petitionAdministrative Law JudgeBias allegationsExtension of timeVerified responseLien trial transcriptSanctionsAttorney's feesConsolidation of cases
References
16
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