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

Case No. MISSING
Regular Panel Decision

Fraser v. New York

Plaintiff Gregory Fraser sued the New York State University at Stony Brook, alleging discriminatory constructive discharge and failure to rehire based on race, invoking statutes such as 42 U.S.C. § 2000e-2 and New York Executive Law § 296. Plaintiff resigned from his initial position after two months and was subsequently unsuccessful in securing seven other positions within the university. The defendant moved for summary judgment, which the court reviewed under Rule 56 of the Federal Rules of Civil Procedure. The court granted summary judgment for the defendant on the constructive discharge claim, finding insufficient evidence of an intolerable work environment. However, the motion was denied for the failure to rehire claim concerning the financial analyst intern position, acknowledging sufficient evidence (including statistical disparities) for a jury to evaluate pretext, while dismissing the state law claims for judicial economy.

Discriminatory Constructive DischargeFailure to RehireRacial DiscriminationTitle VIISummary Judgment MotionPro Se PlaintiffPrima Facie CaseBurden of ProofPretextEmployment Law
References
21
Case No. 2018 NY Slip Op 00626
Regular Panel Decision
Feb 01, 2018

Fraser v. City of New York

The plaintiff, Andrew Fraser, moved for partial summary judgment on the issue of liability concerning his Labor Law § 240 (1) claim. The Supreme Court, New York County, granted this motion. The defendants, City of New York et al., appealed this decision, arguing that the plaintiff was the sole proximate cause of his accident or a recalcitrant worker. However, the Appellate Division, First Department, found that the record did not support the defendants' argument, concluding that a proximate cause of the accident was the failure of a chain fall to adequately support a load, causing it to strike the plaintiff and knock him from a beam. Citing prior cases, the court unanimously affirmed the lower court's order.

Labor LawSummary JudgmentLiabilityProximate CauseChain FallWorkplace SafetyFalling ObjectsRecalcitrant WorkerAppellate AffirmationPersonal Injury
References
3
Case No. 2023 NY Slip Op 04363 [219 AD3d 801]
Regular Panel Decision
Aug 23, 2023

Depass v. Mercer Sq., LLC

The plaintiff, Gerald Depass, allegedly suffered personal injuries after falling from a ladder while working on a demolition project in a building purportedly owned by Mercer Square, LLC, and managed by Madison Management, LLC. Depass commenced an action against both defendants, alleging violations of Labor Law §§ 200, 240(1), and 241(6). The Supreme Court granted the plaintiff's motion for summary judgment on liability for Labor Law § 240(1) against both defendants and struck several affirmative defenses. The Appellate Division modified the order, denying summary judgment on the Labor Law § 240(1) claim against Madison Management, LLC, due to the plaintiff's failure to establish an agency relationship, and reinstated some affirmative defenses for Madison. However, the court affirmed the striking of the assumption of risk and emergency doctrine affirmative defenses.

Personal InjuryLadder FallDemolition ProjectSummary JudgmentLabor LawAgency RelationshipAffirmative DefensesAssumption of RiskEmergency DoctrineAppellate Division
References
12
Case No. MISSING
Regular Panel Decision

Araujo v. Mercer Square Owners Corp.

Plaintiff sued multiple defendants for negligence after tripping and falling on a defective sidewalk. The building is a condominium with a commercial unit owned by Mercer Square LLC and a residential unit owned by Mercer Square Owners Corp. Bath & Body Works, LLC is a tenant in the commercial unit, and the Douglas Group is the building's management company. The court considered motions and cross-motions for summary judgment from all defendants. Mercer Square LLC's motion was denied due to unresolved factual issues regarding its control over the sidewalk. Bath & Body Works, LLC, Mercer Square Associates, and the Douglas Group had their cross-motions granted, dismissing all claims against them. Mercer Square Owners Corp.'s cross motion was granted in part, dismissing specific cross claims, but otherwise denied regarding plaintiff's complaint.

Summary judgmentNegligenceSidewalk liabilityCondominium lawEasementProperty owner dutyManagement company liabilityTenant liabilityCPLR 3212Administrative Code § 7-210
References
35
Case No. ADJ7995883
Regular
Dec 02, 2014

JULIE MERCER vs. STATE OF CALIFORNIA, DEPARTMENT OF MOTOR VEHICLES, STATE COMPENSATION INSURANCE FUND

In this case, the applicant, Julie Mercer, appealed a Workers' Compensation Appeals Board (WCAB) decision that awarded her 93% permanent disability. Mercer argued for permanent total disability (PTD) based on vocational evaluator reports and contended that the prior award improperly apportioned her disability. The WCAB granted reconsideration, finding that both medical and vocational evidence established Mercer's total loss of future earning capacity. Consequently, the WCAB amended the award, finding Mercer 100% permanently totally disabled, entitling her to lifetime indemnity benefits. The Board also found the defendant failed to meet their burden of proof on apportionment.

Permanent Total DisabilityVocational EvaluatorDiminished Future Earning CapacityDeep Vein ThrombosisApportionmentDRE Category VAMA GuidesReconsiderationPermanent Disability Rating ScheduleSubstantial Medical Evidence
References
6
Case No. 2018 NY Slip Op 07390
Regular Panel Decision
Nov 01, 2018

Burhmaster v. CRM Rental Mgt., Inc.

Timothy Burhmaster, a roofer, sustained injuries after falling from a roof while performing emergency repairs. He initiated an action alleging negligence and Labor Law violations against CRM Rental Management, Inc., Colonial Square entities, and Mercer Construction Company LLC. The Supreme Court granted Burhmaster partial summary judgment on liability under Labor Law § 240 (1) due to the absence of safety devices, and also granted Mercer's motion for conditional contractual indemnification against its subcontractor, Robert Young Jr. Young appealed, and Mercer cross-appealed. The Appellate Division, Third Department, affirmed the Supreme Court's order, confirming that the lack of safety equipment was a proximate cause of Burhmaster's injuries and that the parties' conduct constituted a waiver of the contractual requirement for written change orders, thus upholding Mercer's indemnification claim.

Labor Law § 240(1)Construction Site AccidentRoofing FallWorker SafetyPersonal InjurySummary JudgmentContractual IndemnitySubcontractor DisputeWaiver of Contract TermsAppellate Review
References
18
Case No. 06 CV 4345
Regular Panel Decision

Fraser v. United States

Plaintiff Oscar Fraser sued the United States under the Federal Tort Claims Act for personal injuries sustained on a construction site at the Brooklyn Navy Yard. Fraser, a construction worker employed by Cooper Construction Inc., was injured when a concrete capstone fell from a forklift, causing his makeshift scaffold to collapse. The Government moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that Cooper Construction was an independent contractor. The Court found that the contract clearly delegated control and liability for safety and daily operations to Cooper. The Court also noted that the Government's general oversight and contractor selection are discretionary functions, and the FTCA does not waive sovereign immunity for state law non-delegable duties. Consequently, the Court granted the Government's motion to dismiss for lack of subject matter jurisdiction.

Federal Tort Claims ActSovereign ImmunityIndependent ContractorSubject Matter JurisdictionRule 12(b)(1)Construction Site SafetyPersonal Injury ClaimGovernment LiabilityContractual ResponsibilityDiscretionary Function Exception
References
24
Case No. ADJ8005529
Regular
Feb 06, 2013

ERIN MERCER vs. UC SAN DIEGO MEDICAL CENTER, SEDGWICK CMS

In this workers' compensation matter, the applicant, Erin Mercer, filed a Petition for Removal. The Workers' Compensation Appeals Board (WCAB) reviewed the petition and the report of the workers' compensation administrative law judge (WCJ). Adopting the WCJ's reasoning, the WCAB has ordered that the Petition for Removal be DENIED.

Workers' Compensation Appeals BoardPetition for RemovalWCJ reportdeny removalADJ8005529UC San Diego Medical CenterSedgwick CMSApplicantDefendantsAdministrative Law Judge
References
0
Case No. MISSING
Regular Panel Decision

Soto v. J. Crew Inc.

Plaintiff Jose Soto, an employee of a commercial cleaning company, suffered injuries after falling from a ladder while dusting a display shelf at a J. Crew store. He sued J. Crew and The Mercer I L.L.C. under Labor Law § 240 (1), alleging a failure to provide adequate safety devices. The lower courts granted summary judgment to the defendants, classifying Soto's task as routine maintenance not covered by the statute. The Court of Appeals affirmed, establishing criteria to differentiate routine cleaning from covered activities and concluding that dusting a display shelf was not within the statute's protective scope. The decision clarifies the application of Labor Law § 240 (1) regarding elevation-related risks in commercial cleaning.

Labor LawElevation RiskRoutine MaintenanceCommercial CleaningPersonal InjurySummary JudgmentAppellate ReviewStatutory InterpretationLadder FallWorkplace Safety
References
12
Case No. MISSING
Regular Panel Decision

People v. Fraser

The defendant appealed a conviction for possessing a sexual performance by a child, arguing that a computer image is not a 'photograph' under Penal Law § 263.00 (4) and that the court erred in denying affirmative and justification defenses. The New York court affirmed the conviction, holding that a 'photograph' includes a computer graphic image, aligning with legislative intent to eradicate child pornography in all forms. The court also rejected the defendant's argument for a 'scientific, educational, or governmental purpose' affirmative defense, stating it only applies to obscenity prosecutions, not child pornography possession. Furthermore, the court dismissed the defendant's equal protection and mistake of law arguments, emphasizing the compelling state interest in protecting children over any alleged scientific value of child pornography.

Child pornographyComputer graphic imageStatutory interpretationPenal Law § 263.16Affirmative defenseJustification defenseMistake of lawFirst AmendmentEqual protectionAppellate review
References
10
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