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Case Law Database

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

Case No. 2021 NY Slip Op 01018 [191 AD3d 548]
Regular Panel Decision
Feb 16, 2021

Matter of Tenants United Fighting for the Lower E. Side v. City of New York Dept. of City Planning

The Appellate Division reversed a lower court order that had annulled approvals by the New York City Planning Commission (CPC) for new building constructions. The Supreme Court had initially granted petitions from Tenants United Fighting for the Lower East Side and Lower East Side Organized Neighbors. The appellate court held that the Supreme Court should have deferred to the CPC's reasonable interpretation of the New York City Zoning Resolution (ZR). Specifically, the Appellate Division clarified that ZR § 78-043's requirement for findings as a condition precedent only applies to modifications granted by special permit or authorization, not to other types of modifications to large-scale residential developments. Consequently, the petitions were denied and the proceedings dismissed.

Zoning ResolutionLarge-Scale Residential DevelopmentCity Planning CommissionAdministrative LawAppellate ReviewJudicial DeferenceStatutory InterpretationArticle 78 ProceedingNYC ZoningUrban Planning
References
7
Case No. 2018 NY Slip Op 04679
Regular Panel Decision
Jun 26, 2018

Borst v. Lower Manhattan Dev. Corp.

This consolidated appeal concerns a fire at the former Deutsche Bank building in Lower Manhattan, where plaintiffs sought punitive damages against Bovis Lend Lease LMB, Inc. and Bovis Lend Lease, Inc. (Bovis), the general contractor. The fire, which injured over a hundred firefighters and killed two, was exacerbated by wooden barriers obstructing stairwells and a non-operational water standpipe system. The Appellate Division affirmed the Supreme Court's denial of Bovis's summary judgment motions, finding that a jury could reasonably conclude Bovis's site safety manager's failure to ensure standpipe readiness and enforce a no-smoking policy constituted wilful and wanton disregard for public safety. Furthermore, the court noted an issue of fact regarding whether Bovis's management was aware of the manager's incompetence but deliberately retained him, potentially establishing corporate liability for punitive damages.

Punitive damagesSummary judgmentWilful and wanton disregardCorporate liabilityStandpipe systemFire safetyDemolition projectGeneral contractorEmployee incompetenceRatification
References
7
Case No. VNO 0456809
Regular
Oct 02, 2007

JAVAD BASSIRY, vs. AMERICAN RESIDENTIAL SERVICES; ZURICH NORTH AMERICA

This case involves Javad Bassiry's workers' compensation claim for injuries sustained as a plumber tech. The Appeals Board granted reconsideration to amend a finding of fact regarding the specific body parts injured. Ultimately, the Board affirmed the original decision but with the clarified finding of injury to the applicant's left shoulder, neck, left arm, left wrist, and lower abdominal muscle.

Javad BassiryAmerican Residential ServicesZurich North AmericaVNO 0456809ReconsiderationJuly 30 2007Plumber techOccupational Group No. 481March 8 2002Left shoulder
References
0
Case No. MISSING
Regular Panel Decision

Flores v. Lower East Side Services Center, Inc.

This case addresses whether an unsigned written contract for indemnification is enforceable under Workers’ Compensation Law § 11. Lower East Side Service Center (LES), a building owner, sought contractual indemnification from Procida Realty and Construction Corp. (Procida), its general contractor, after a Procida employee sustained an injury. Although Procida performed work under the contract, it never formally signed the indemnification agreement. The lower courts deemed the unsigned contract unenforceable. The Court of Appeals reversed, holding that Workers’ Compensation Law § 11 does not explicitly require a signed agreement and that common-law principles allow for enforceability based on objective evidence of intent and course of conduct. The court granted summary judgment to LES, reinstating its contractual indemnification claim.

Workers' Compensation LawContractual IndemnificationThird-Party ClaimsUnsigned ContractsStatute of FraudsLegislative IntentCommon LawSummary JudgmentAppellate ReviewNew York State Court of Appeals
References
10
Case No. MISSING
Regular Panel Decision

Bovis Lend Lease (LMB), Inc. v. Lower Manhattan Development Corp.

This case involves a contractual dispute between Bovis Lend Lease (LMB), Inc. (Plaintiff), a deconstruction contractor, and Lower Manhattan Development Corp. (LMDC) (Defendant), responsible for redeveloping lower Manhattan after 9/11. Bovis was contracted to deconstruct the Deutsche Bank Building but encountered unforeseen regulatory interference and delays, leading to significant cost overruns. Bovis's amended complaint sought damages for extra work, general conditions, profit, insurance costs, and constructive acceleration. The court ruled that Bovis's claims for extra work due to regulatory interference and damages for delay were barred by the contract's 'no damages for delay' clause and the explicit assumption of regulatory delay risks by Bovis. While some claims were dismissed, others related to amounts due under the original lump sum contract, including overhead, profit, and insurance (excluding fire-related incremental costs), were reinstated after reargument. Ultimately, the court emphasized upholding the clear terms of the contract between sophisticated business entities.

Contractual disputeDeconstruction projectRegulatory interferenceDelay damagesNo damages for delay clauseExtra workConstruction lawAppellate reviewContract interpretationRisk allocation
References
8
Case No. MISSING
Regular Panel Decision

Claim of Gaylord v. Ichabod Crane Central School District

Claimant, a school bus driver, suffered muscle spasms and lower back pain attributed to her work, including lifting a nonambulatory child and enduring kicks from an autistic child. After seeking chiropractic and medical treatment, she was diagnosed with fibromyalgia and permanent disability. The Workers’ Compensation Board, however, only found a minor back strain that had resolved, largely relying on a medical expert who deemed the fibromyalgia a preexisting condition. The claimant appealed for a higher degree of disability, but the Appellate Division affirmed the Board's decision, finding substantial evidence to support the Board's conclusion that the fibromyalgia was not a causally related disability.

Workers' CompensationBack InjuryFibromyalgiaCausationMedical OpinionDisabilityAppellate ReviewPreexisting ConditionSubstantial EvidenceSchool Bus Driver
References
2
Case No. MISSING
Regular Panel Decision
Aug 04, 1995

Claim of Diliberto v. Hickory Farms, Inc.

The claimant was injured at work on December 30, 1987, sustaining injuries to his neck, shoulder blade, and left arm, with findings later expanded to include the lower back. The employer and its insurer disputed the causal relationship of the lower back injury. Although a Workers’ Compensation Law Judge found the lower back injury causally related, the Workers’ Compensation Board ultimately disallowed this claim due to a lack of credible medical evidence. The Board's decision was affirmed on appeal, as it was within the Board's authority to resolve conflicting expert medical testimony. Supporting the Board's finding, medical experts indicated no causal link, and the claimant did not report lower back pain until 16 months post-accident.

Causality DisputeMedical Expert TestimonyBoard DiscretionAffirmationLower Back PainDelayed SymptomsInjured WorkerEmployer LiabilityInsurance DisputeAppellate Division
References
3
Case No. ADJ7410586
Regular
May 18, 2012

Randall Salcido vs. California Department of Corrections and Rehabilitation, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration, affirming the WCJ's finding that the applicant's temporary disability benefits should be based on his earnings as a teacher on the date of injury. The defendant argued that benefits should be based on the applicant's lower subsequent earnings as a warehouse supervisor, as the transfer was anticipated. However, the Board held that the applicant's actual earnings as a teacher reflected his earning capacity and that the lower warehouse supervisor wage was an aberrant basis for calculation. The Board also noted that using the lower wage would incentivize employers to downsize to reduce liability.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings of FactDisability BenefitsVocational TeacherEarnings CalculationTemporary DisabilityAverage Weekly EarningsEarning CapacityLabor Code Section 4453
References
7
Case No. MISSING
Regular Panel Decision

Kaferstein v. J.P. Morgan Chase & Co.

This case addresses the applicability of Labor Law § 240 (1) to a plaintiff injured while lowering a pipe into a building's basement from sidewalk level. The plaintiff, an employee of General Plumbing Corp., was lowering an 11-foot, 200-300 pound pipe into a shaft 18 feet below the sidewalk when it free fell, injuring his arm, which was attached to the pipe by a rope. Defendants argued the section was inapplicable as the plaintiff was not working at an 'elevation' and the pipe was being lowered. The court, referencing precedents, found that the work involved 'risks related to differences in elevation' and the injury directly resulted from the 'application of the force of gravity.' Consequently, Labor Law § 240 (1) was deemed applicable, and defendants were found to have failed to provide the mandated protection. The plaintiff's motion for summary judgment on liability under this section was granted, and the defendants' motions were denied.

Labor Law 240(1)Summary JudgmentElevation RiskGravityConstruction AccidentPipe LoweringSidewalk InjuryWorker SafetyEmployer LiabilityThird-Party Defendant
References
20
Case No. 527925
Regular Panel Decision
Jul 25, 2019

Matter of Smith v. Rochester-Genesee Regional Transp. Auth.

Claimant George I. Smith appealed a Workers' Compensation Board decision from November 15, 2017. The Board ruled that Smith's lower back injury was not a consequential causally-related injury to his initial work-related right foot and consequential left knee injuries from February 2012. Additionally, the Board found that Smith violated Workers' Compensation Law § 114-a by failing to disclose his complete medical history regarding a prior lower back injury from a 2000 motor vehicle accident. The WCLJ and subsequently the Board denied Smith's request to amend his claim for the lower back injury and imposed penalties, rescinding and disqualifying him from future indemnity benefits. The Appellate Division affirmed the Board's decision, finding substantial evidence supported both the lack of causal relationship for the back injury and the § 114-a violation due to Smith's false representations and omissions.

Workers' Compensation Law § 114-aFraudulent MisrepresentationCausally Related InjuryLower Back InjuryIndependent Medical ExaminationPrior Medical HistoryIndemnity BenefitsAppellate ReviewSubstantial EvidenceCredibility Determination
References
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