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

Case No. 2017 NY Slip Op 00099 [146 AD3d 466]
Regular Panel Decision
Jan 10, 2017

Erkan v. McDonald's Corp.

Plaintiff Huseyin Erkan was injured when he fell from an unsecured ladder while installing tiles for a McDonald's restaurant, subsequently filing a lawsuit against McDonald's Corporation and Custom Commercial Construction Corp. alleging Labor Law violations. The Supreme Court initially denied his motion for partial summary judgment on the Labor Law § 240 (1) claim, citing prematurity. However, the Appellate Division, First Department, unanimously reversed this decision, granting the plaintiff's motion. The appellate court determined that the plaintiff established a prima facie case for liability under Labor Law § 240 (1) and the defendants failed to present admissible evidence to create a material issue of fact. It emphasized that unverified documents and unsworn statements were insufficient to oppose summary judgment, affirming that the owner or contractor's failure to provide proper protection leads to absolute liability unless the worker's actions were the sole proximate cause.

Labor Law § 240 (1)Summary JudgmentAbsolute LiabilityUnsecured LadderConstruction AccidentPremature MotionEvidentiary ProofUnverified RecordsSole Proximate CauseAppellate Review
References
11
Case No. MISSING
Regular Panel Decision
Jul 27, 2007

Hai Ming Lu v. Jing Fong Restaurant, Inc.

Plaintiffs, members of the wait staff at Jing Fong Restaurant, Inc., filed an action alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) concerning minimum wage, overtime, gratuity retention, uniform reimbursement, and retaliation, alongside a breach of contract claim. The defendants, Jing Fong Restaurant, Inc. and six associated individuals, moved for summary judgment. The Court granted summary judgment, dismissing claims related to retaliation, uniform cleaning costs, breach of contract, and the argument that retaining banquet service charges violated NYLL § 196-d, citing New York appellate precedents. However, the motion was denied for claims alleging the illegal use of the gratuity pool to pay restaurant expenses, improper tip credit usage under federal and state law, and management interference in tip distribution. The Court found that genuine issues of material fact remained for trial on these latter points.

Fair Labor Standards Act (FLSA)New York Labor Law (NYLL)Minimum WageOvertime ViolationsGratuitiesTip PoolingService ChargesUniform ReimbursementRetaliationSummary Judgment
References
14
Case No. MISSING
Regular Panel Decision

Stephenson v. Hotel Employees & Restaurant Employees Union Local 100

This is a dissenting opinion concerning an age discrimination lawsuit brought by Albert Stephenson and Leroy Hodge against the Hotel Employees and Restaurant Employees Union Local 100 and the Hotel Employees and Restaurant Employees International Union. The plaintiffs were fired in 1992, and a jury found in their favor, awarding substantial damages. The majority opinion reversed this verdict, but the dissenting judge, Mazzarelli, argues that the evidence presented at trial was legally sufficient to support the jury's finding of age discrimination. The dissent reviews the trial proceedings, jury instructions, evidentiary rulings, and damage awards, concluding that the jury had a rational basis for its decision. While affirming liability, the dissent suggests remanding the case for a collateral source hearing to determine potential offsets to the damages.

Age DiscriminationEmployment LawWrongful TerminationJury VerdictAppellate ReviewLegal SufficiencyBurden of ProofPretextDamagesFront Pay
References
22
Case No. ADJ8266811 ADJ8710466
Regular
Jan 12, 2017

LILIANA RUIZ vs. MCDONALD'S, ZENITH INSURANCE COMPANY, CALIFORNIA RESTAURANT MUTUAL BENEFIT CORPORATION

This case involves Liliana Ruiz filing eleven workers' compensation claims against McDonald's, six of which were consolidated. One defendant, Zenith Insurance Company, settled two of these consolidated cases with Ruiz via a Compromise and Release for $20,000. Another defendant, California Restaurant Mutual Benefit Corporation (administered by American Claims Management), petitioned for reconsideration, arguing the settlement contravened consolidation purposes. The Board denied reconsideration, adopting the WCJ's report which found American Claims failed to demonstrate prejudice or good cause to set aside the settlement. The Board clarified that Zenith's settlement resolved only its potential liability and did not affect American Claims' right to seek contribution.

Petition for ReconsiderationCompromise and ReleaseContributionConsolidationCumulative TraumaAOE/COEApportionmentInsurance CoverageWCJWorkers' Compensation Appeals Board
References
2
Case No. MISSING
Regular Panel Decision

Solis v. SCA Restaurant Corp.

The Secretary of Labor brought an action against SCA Restaurant Corporation and its owner, Luigi Quarta, alleging violations of the Fair Labor Standards Act (FLSA), including failure to pay minimum wage and overtime, inadequate record-keeping, and retaliation. After a bench trial, the court found the defendants liable on all claims, determining their violations were willful. The defendants paid fixed weekly salaries despite employees working over 40 hours, falsified records, and threatened employees for testifying. The court awarded $137,867.12 in unpaid wages, an equal amount in liquidated damages, and $2,000 in compensatory damages for emotional distress. A prospective injunction was also issued to prevent future FLSA violations.

FLSA ViolationsMinimum WageOvertime CompensationRecord Keeping ViolationsEmployee RetaliationWillful ViolationsUndocumented WorkersLiquidated DamagesCompensatory DamagesInjunctive Relief
References
87
Case No. MISSING
Regular Panel Decision
Mar 12, 1998

In re Mamash Restaurant Corp.

Mamash Restaurant Corporation appealed a decision by the Unemployment Insurance Appeal Board that assessed additional unemployment insurance contributions and a fraud penalty for the audit period of January 1993 through December 1995. The Board's assessment was based on findings that Mamash underreported its employees and failed to produce accurate records. Mamash contended that the Board improperly estimated the number of employees due to physical capacity limitations of its premises. The court affirmed the Board's decision, finding that the Board was justified in its estimated assessment given Mamash's failure to produce records and evidence from a tax auditor's survey. The fraud penalty was also upheld as warranted under the circumstances.

Unemployment InsuranceUnderreporting EmployeesFraud PenaltyEstimated AssessmentEmployee RecordsAudit PeriodAdministrative AppealAppellate DivisionNew York Labor LawEmployer Liability
References
2
Case No. MISSING
Regular Panel Decision
Aug 19, 2013

Joseph v. HDMJ Restaurant, Inc.

Plaintiff Germelia Joseph sued HDMJ Restaurant, Inc. and its owners for discrimination under ADA, Title VII, NYHRL, and New York Labor Law. After initial dismissals of some claims and individual defendants, HDMJ failed to retain counsel, leading to a default. Magistrate Judge Tomlinson recommended granting default judgment in part for Title VII claims (hostile work environment and retaliation) and denying it for ADA claims, finding no disability under the ADA. District Judge Seybert adopted the R&R, awarding Plaintiff $10,650.00 in back pay, prejudgment interest, $30,000.00 in compensatory damages for emotional distress, and $4,371.75 in attorney's fees. The ADA claims were dismissed with prejudice.

Title VII discriminationADA claimsHostile work environmentRetaliationDefault judgmentEmotional distress damagesBack payPre-judgment interestAttorney's feesEmployment discrimination
References
136
Case No. MISSING
Regular Panel Decision

Lama v. SPK Restaurant, Inc.

Claimant applied for workers' compensation benefits due to respiratory injuries sustained while cleaning up after the 9/11 attacks in New York City. The Workers' Compensation Board identified SPK Restaurant, Inc. as the employer and awarded benefits. SPK and its carrier appealed, contending a lack of substantial evidence to support the employer-employee relationship. The court found that claimant consistently identified John Gelestathis as his employer, and there was no evidence in the record to establish employment by SPK. Consequently, the Board's decision was reversed, and the matter remitted for further proceedings.

Workers' CompensationEmployer-Employee RelationshipSubstantial Evidence9/11 CleanupRespiratory InjuryRemittalAppealNew YorkSPK Restaurant IncJohn Gelestathis
References
2
Case No. MISSING
Regular Panel Decision

Alvarez v. IBM Restaurants Inc.

Plaintiffs Lucio Alvarez, et al., filed a putative collective action against IBM Restaurants, Roger Bedoian, Daniel Iannucci, and Vincenzo Iannucci, alleging unpaid overtime and minimum wage violations under the Fair Labor Standards Act (FLSA) and New York State Labor Law. The plaintiffs moved for conditional certification of the class and to facilitate notice. The court granted the motion for conditional certification, establishing a class of employees who worked for the defendants in the last three years. The court further directed the parties to submit a revised Notice of Pendency, limiting the notice period to three years based on the FLSA's statute of limitations for willful violations, and ordered the defendants to produce a list of putative class members from November 4, 2007, to the present. The court also instructed that the revised notice should include minimum wage claims and deferred the defendants' request for removal of specific defendants.

FLSANew York State Labor LawCollective ActionConditional CertificationOvertime PayMinimum WageWage and HourStatute of LimitationsNotice of PendencyEmployee Rights
References
28
Case No. MISSING
Regular Panel Decision

Whidbee v. McDonald's Corp.

Plaintiffs Jocelyn Whidbee and Shirlene Tranquille, both African-American, sued their former employer, McDonald's Restaurant in Middletown, New York, and its owners, Ed and John Garzarelli, alleging employment discrimination under 42 U.S.C. § 1981 and New York Executive Law §§ 296 and 297, and constructive discharge. The claims stemmed from alleged racially offensive comments made by a co-worker. Defendants moved for summary judgment. The court granted summary judgment, finding that the alleged harassment did not meet the severity or pervasiveness required for a hostile work environment claim, and that there was no causal link for individual liability against the owners. The court also dismissed the New York Human Rights Law claim due to prior administrative filings and the constructive discharge claim, as plaintiffs failed to demonstrate deliberately intolerable working conditions.

Employment DiscriminationHostile Work EnvironmentRacial HarassmentSummary JudgmentConstructive DischargeSection 1981New York Executive LawAt-Will EmploymentCo-worker MisconductEmployer Liability
References
37
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