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

Case No. 534171, 534534
Regular Panel Decision
Oct 06, 2022

In the Matter of the Claim of James Banish

James Banish, a patrol officer, appealed two decisions by the Workers' Compensation Board concerning his claim for workers' compensation benefits. Initially, his claim for jaw and head injuries resulting from an on-duty assault was established, but he later sought to amend it to include a causally-related left shoulder injury. The Workers' Compensation Law Judge, affirmed by the Board, found no causal relationship for the shoulder injury and denied the claim; subsequently, his application for reconsideration and/or full Board review was also denied. The Appellate Division, Third Judicial Department, affirmed both decisions, concluding that substantial evidence supported the Board's determination that the shoulder injury was not causally related to his employment. The court also found no abuse of discretion in denying reconsideration, clarifying that Workers' Compensation Law and General Municipal Law § 207-c are distinct statutory schemes, and a prior award under one does not dictate the other.

Workers' Compensation BenefitsCausal RelationshipLeft Shoulder InjuryGeneral Municipal Law § 207-cWorkers' Compensation LawSubstantial EvidenceAbuse of DiscretionReconsideration DenialFull Board ReviewPatrol Officer
References
17
Case No. CA 15-00709
Regular Panel Decision
Nov 13, 2015

ANDERSON, ROBERT JAMES v. KERNAN, JAMES M.

Plaintiff Robert James Anderson initiated an action against James M. Kernan and Marlene Kernan, seeking damages for an alleged breach of a joint venture agreement. The purpose of this alleged venture was to develop a market for workers' compensation insurance coverage through professional employer organizations (PEO). The Supreme Court, Oneida County, granted the defendants' motions for summary judgment, dismissing the complaint. The Appellate Division, Fourth Judicial Department, unanimously affirmed this decision, concluding that both Marlene Kernan and James M. Kernan made prima facie showings that they did not agree to enter into a joint venture with the plaintiff. The court further found that the plaintiff failed to raise a triable issue of fact, noting that an 'agreement to agree' on a general principle is unenforceable due to indefiniteness in contract law.

Joint Venture AgreementBreach of ContractSummary JudgmentAppellate ReviewContract LawIndefinitenessAgreement to AgreeWorkers' Compensation InsuranceProfessional Employer OrganizationsCivil Procedure
References
6
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 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. 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. 2018 NY Slip Op 05756 [164 AD3d 660]
Regular Panel Decision
Aug 15, 2018

James v. Crystal Springs Water

The plaintiff, Robert James, an employee of Manpower Group US, Inc., was injured while working at Crystal Springs Water premises and subsequently received workers' compensation benefits. James then initiated a personal injury action against Crystal Springs Water. Crystal Springs moved for summary judgment, asserting it was James's special employer under Workers' Compensation Law §§ 11 and 29, which would legally bar a negligence suit. The Supreme Court, Suffolk County, granted this motion. The Appellate Division, Second Department, affirmed the decision, concluding that Crystal Springs had established a prima facie case of special employment based on James's receipt of workers' compensation and Crystal Springs' control over his work details. The plaintiff's contradictory affidavit was deemed insufficient to create a triable issue of fact.

Workers' CompensationSpecial Employment DoctrineSummary Judgment MotionPersonal Injury LitigationAppellate ReviewEmployer ImmunityGeneral EmployerControl TestConflicting TestimonyNew York Labor Law
References
8
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