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

Case No. 2020 NY Slip Op 06316
Regular Panel Decision
Nov 05, 2020

People v. May

The case concerns an appeal by Nicholas A. May from a judgment convicting him of predatory sexual assault against a child and course of sexual conduct against a child in the second degree. The charges arose from allegations that May sexually abused an underage victim over several years. May challenged the verdict's legal sufficiency and weight of the evidence, the admissibility of expert testimony concerning child sexual abuse, and claims of ineffective assistance of counsel. The Appellate Division, Third Department, affirmed the County Court's judgment, finding sufficient evidence, appropriate expert testimony from a nurse practitioner and a licensed clinical social worker, and meaningful representation by trial counsel, despite the defense's arguments regarding the victim's credibility and lack of corroboration. The court noted that the issues raised by the defense were adequately explored during the trial.

Child sexual abusePredatory sexual assaultCourse of sexual conductExpert witness testimonyIneffective assistance of counselAppellate reviewJury verdictVictim credibilityChild abuse accommodation syndromeCriminal law
References
33
Case No. MISSING
Regular Panel Decision

Mayes v. Local 106, International Union of Operating Engineers

The case involves plaintiff George A. Mayes suing Local 106, International Union of Operating Engineers, and its officers for alleged discrimination in job referrals and denial of rights under the Labor-Management Reporting and Disclosure Act (LMRDA). The defendants counterclaimed, seeking expenses incurred from Mayes' "baseless charges" against union members James Tommaney and Dan Lewis, citing violations of the Union's constitution and state law tort and breach of contract claims. Mayes moved for summary judgment, arguing good faith in filing charges under LMRDA and lack of court jurisdiction over the counterclaims. The court found material factual disputes regarding Mayes' motives, asserting jurisdiction over the counterclaims under 29 U.S.C. § 185. It also determined that the tort and breach of contract claims were sufficiently pleaded, thereby denying Mayes' motion for summary judgment and allowing the counterclaims to proceed.

Labour LawUnion DisputeSummary JudgmentCounterclaimsLMRDAFree SpeechUnion ConstitutionJurisdictionTort ClaimsBreach of Contract
References
13
Case No. 2014 NY Slip Op 05774 [120 AD3d 552]
Regular Panel Decision
Aug 13, 2014

Karanikolas v. Elias Taverna, LLC

This case involves an action to recover damages for personal injuries sustained by Nikolaos Karanikolas, who fell from a ladder while performing construction work in a building owned by 20 John Street, LLC and leased by Elias Taverna, LLC. The plaintiffs alleged common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). The Appellate Division, Second Department, modified an order of the Supreme Court, Queens County. Key modifications included denying the plaintiffs' motion for summary judgment on Labor Law § 240 (1) liability, granting parts of the defendants' cross-motions to dismiss Labor Law § 241 (6) claims based on specific Industrial Code sections, and granting 20 John Street's cross-motion for contractual indemnification against Elias Taverna. Additionally, the court granted Elias Taverna's cross-motion to dismiss common-law negligence and Labor Law § 200 claims against it, as well as claims for common-law indemnification and contribution.

Personal InjuryConstruction AccidentLadder FallLabor LawSummary JudgmentAppellate ReviewContractual IndemnificationCommon-Law NegligenceIndustrial CodePremises Liability
References
15
Case No. ADJ1457637
Regular
May 20, 2014

NEOMI SEQUEIROS vs. COMPTON UNIFIED SCHOOL DISTRICT, GALLAGHER BASSETT

The Workers' Compensation Appeals Board has dismissed a Petition for Reconsideration filed by Compton Unified School District and Gallagher Bassett in the case of Neomi Sequeiros. This dismissal is due to the petitioner's withdrawal of the petition. The original decision being reconsidered was issued on March 5, 2014. The Board formally issued this dismissal order on May 20, 2014.

Petition for ReconsiderationWithdrawnDismissedWorkers' Compensation Appeals BoardCompton Unified School DistrictGallagher BassettNeomi SequeirosADJ1457637LBO 0366014March 5 2014
References
0
Case No. ADJ1883092 (AHM 0147002)
Regular
Jul 07, 2014

JAMES HUCKABEE vs. RALPHS/THE KROGER COMPANY

The Workers' Compensation Appeals Board (WCAB) dismissed the Petition for Reconsideration filed by James Huckabee. The dismissal was based on the petition being untimely. Huckabee had actual notice of the September 4, 2013 Order Dismissing Lien Claim by March 4, 2014, but did not file the petition until May 5, 2014. This exceeded the 20-day jurisdictional deadline for filing a petition for reconsideration after receiving actual notice.

Petition for ReconsiderationUntimely FilingLabor Code section 5903Jurisdictional Time LimitActual NoticeOrder of DismissalLien ClaimDeclaration of Readiness to ProceedPetition for Relief from DefaultCode of Civil Procedure section 473(b)
References
8
Case No. ADJ8732541
Regular
Jul 22, 2014

DENNIS STRONG vs. APPLIED BIOLOGICAL CONSULTING, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA

This case involves Dennis Strong's Petition for Removal, which was dismissed by the Workers' Compensation Appeals Board. The dismissal was primarily due to the petition being filed on June 2, 2014, which was outside the 20-day deadline from the May 1, 2014 decision, rendering it untimely. Furthermore, even if timely, the petition lacked the required showing of significant prejudice or irreparable harm needed for removal. The Board also noted that reconsideration would be an adequate remedy once a final decision issues.

Petition for RemovalUntimelyPersonal ServiceDecision DateFiling Deadline20-day limitCal. Code Regs. tit. 8 § 10843Strom v. WCABSignificant PrejudiceIrreparable Harm
References
1
Case No. ADJ8838881
Regular
Jul 11, 2014

ALEXANDER ENGLISH vs. DALLAS MAVERICKS, ZENITH INSURANCE COMPANY

This case involves a petition for removal filed by the defendants, Dallas Mavericks and Zenith Insurance Company. The Workers' Compensation Appeals Board dismissed the petition because it was filed on June 18, 2014, which was untimely. The original decision was issued on April 8, 2014, and the petitioner failed to file within the required 20-day period for personal service. The Board clarified that the 20-day deadline, not 25 days, applied, making the petition due by April 28, 2014.

Petition for RemovalUntimely FilingPersonal Service20-day DeadlineWCJ ReportStrom v. Workers' Comp. Appeals Bd.ADJ8838881Oakland District OfficeWorkers' Compensation Appeals BoardDALLAS MAVERICKS
References
1
Case No. ADJ9058932
Regular
Jul 28, 2014

DIANA OCHOA vs. COUNTY OF LOS ANGELES, DEPARTMENT OF PUBLIC SOCIAL SERVICES, SEDGWICK CMS

The Appeals Board dismissed the defendant's Petition for Removal, finding it was an improper remedy for contesting a final order to pay a deposition fee. Treating the petition as one for reconsideration of the WCJ's order to pay $1,300 in deposition fees, the Board also dismissed it as untimely filed. The defendant's objection was overruled via WCJ correspondence on April 22, 2014, making the petition for reconsideration due by May 19, 2014, but it was filed on May 27, 2014. The Board would have denied reconsideration on the merits due to the WCJ's reasoning, had it been timely.

Workers' Compensation Appeals BoardPetition for RemovalPetition for ReconsiderationLabor Code section 5710Deposition FeeWCJDue ProcessFinal OrderTimely FiledEvidentiary Hearing
References
4
Case No. 2021 NY Slip Op 00744 [191 AD3d 1363]
Regular Panel Decision
Feb 05, 2021

Lemiszko v. Mosovich 2014 Family Trust

Plaintiff Troy C. Lemiszko commenced an action seeking damages for injuries sustained after falling from a ladder on premises owned by Mosovich 2014 Family Trust. Defendant AAA Contracting, LLC appealed an order denying its pre-answer motion to dismiss Labor Law claims and the Trust's cross-claim for contractual indemnification. The Appellate Division affirmed the lower court's order, rejecting AAA Contracting, LLC's collateral estoppel argument, finding that a prior workers' compensation determination did not preclude plaintiff's Labor Law recovery. The court also upheld the denial of dismissal for the contractual indemnification cross-claim due to insufficient documentary evidence.

Collateral EstoppelLabor Law ClaimsContractual IndemnificationWorkers' Compensation BoardLadder FallPersonal InjuryAppellate ReviewMotion to DismissGeneral Contractor LiabilityUninsured Employer
References
13
Case No. MISSING
Regular Panel Decision

Union of Needletrades, Industrial & Textile Employees v. May Department Stores Co.

The plaintiffs, Union of Needle-trades, Industrial and Textile Workers (UNITE) and others, sued May Department Stores Company (May) alleging violations of the Securities Exchange Act of 1934 and SEC rules related to proxy solicitations. UNITE sought relief claiming May improperly exercised discretionary voting authority and made false or misleading statements in its proxy materials concerning an 'anti-poison pill proposal'. The defendant moved to dismiss the complaint for failure to state a claim and failure to plead fraud with particularity. The court granted May's motion, concluding that May lawfully exercised its discretionary authority under SEC Rule 14a-4(c)(1) and that UNITE failed to allege any actionable false or misleading statements under SEC Rule 14a-9. The complaint was dismissed.

Securities LawProxy SolicitationShareholder RightsMotion to DismissRule 12(b)(6)Rule 9(b)Discretionary AuthorityMisleading StatementsSecurities Exchange ActSEC Rules
References
33
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