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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 08012
Regular Panel Decision
Dec 29, 2020

Perez v. Masonry Servs., Inc.

This case, Perez v Masonry Services, Inc., concerns a lawsuit brought by Adrian Perez and others against Masonry Services, Inc. (MSI), Manuel J. Herrera, James Herrera, and Lettire Construction Corp. The plaintiffs alleged a breach of contract to pay prevailing wages, as mandated by the Davis-Bacon Act, for work on a federally financed construction project. The Supreme Court, New York County, found in favor of the plaintiffs, awarding them joint and several damages. The court also permitted Lettire Construction Corp. to assert alter ego and veil piercing claims against MSI, Manuel, and James. The Appellate Division, First Department, unanimously affirmed the Supreme Court's judgment, concluding that the record supported the finding that Manuel and James abused the corporate form to avoid wage payments and that joint and several liability was properly imposed.

Prevailing WageDavis-Bacon ActBreach of ContractAlter EgoVeil PiercingJoint and Several LiabilityConstruction ProjectCorporate Form AbusePayroll RecordsDamages Award
References
10
Case No. MISSING
Regular Panel Decision
Jul 06, 2000

T & S Masonry v. State Insurance Fund

This case concerns a declaratory judgment action initiated by T & S Masonry against the State Insurance Fund (SIF) to compel SIF to insure, defend, and indemnify T & S regarding common-law claims from Kay Construction Corp. in an underlying personal injury action involving William Gosek. The IAS court initially granted T & S's motion for summary judgment, finding SIF had adequate notice. However, the Appellate Court reversed this decision. The court found T & S Masonry's delay in notifying SIF of the fourth-party action brought by Kay Construction against T & S was unreasonable, despite SIF's knowledge of the initial accident and underlying lawsuit. Consequently, it was declared that SIF is not obligated to insure, defend, or indemnify T & S Masonry for the claims.

Declaratory JudgmentInsurance Coverage DisputeNotice Provision BreachSummary Judgment ReversedThird-Party ActionFourth-Party ActionWorkers' Compensation BoardEmployer LiabilityCommon-Law ClaimsIndemnification
References
2
Case No. MISSING
Regular Panel Decision

Stone v. Williams

Robert Stone was injured at a Merit service station in Staten Island on April 3, 1977, when he was struck by a car driven by Kerry Williams. A jury assessed Stone's damages at $200,000 and apportioned 20% liability to the Merit service station defendants. The dissenting opinion argues against the majority's view that the service station owed no duty to direct traffic and that its negligence was not a causative factor. Justice Gibbons contends that the service station had a duty of reasonable care to its patrons and that the jury's finding of negligence and proximate cause, based on inadequate staffing and failure to control traffic, was supported by the evidence. He also argues that the $200,000 damage award was not excessive, citing the severity of Stone's injuries, including a broken leg, a mangled hand with a shattered middle finger, and the amputation of a ring finger, resulting in a 40-50% permanent loss of use of his left hand.

Personal InjuryNegligencePremises LiabilityDuty of CareProximate CauseForeseeabilityJury VerdictDamagesExcessive DamagesAppellate Review
References
14
Case No. 2018 NY Slip Op 07114 [165 AD3d 1090]
Regular Panel Decision
Oct 24, 2018

McDonnell v. Sandaro Realty, Inc.

Matthew McDonnell was injured in a construction accident when a scaffold plank broke. He and his wife sued Sandaro Realty, Inc. (owner) and E.W. Howell Co., LLC (general contractor) for negligence and Labor Law violations. Howell then initiated a third-party action against subcontractors Bay Structures, Inc. (McDonnell's employer) and J&R Brick Masonry, Inc. (scaffold owner). The Supreme Court's order dated May 26, 2015, was appealed and cross-appealed by multiple parties regarding summary judgment motions on various claims including Labor Law violations, common-law negligence, spoliation of evidence, contractual indemnification, common-law indemnification, and breach of contract to procure insurance. The Appellate Division modified the Supreme Court's order by granting summary judgment to plaintiffs on the Labor Law § 240 (1) claim against Sandaro, granting Bay Structures summary judgment on common-law indemnification and contribution, denying J&R Brick Masonry's motion for summary judgment, denying several conditional summary judgment motions for indemnification by Sandaro and Howell, and modifying the spoliation sanction against Howell to an adverse inference charge instead of striking pleadings.

Personal InjuryConstruction AccidentScaffold FallLabor Law ViolationsSummary JudgmentSpoliation of EvidenceIndemnificationContractual IndemnificationCommon-Law IndemnificationBreach of Contract
References
34
Case No. 2021 NY Slip Op 05371 [198 AD3d 1031]
Regular Panel Decision
Oct 07, 2021

Matter of Tompkins v. Bedford Stone & Masonry

The claimant, Michael Tompkins, appealed a decision by the Workers' Compensation Board concerning a reduction in counsel fees. His attorney had negotiated a $200,000 settlement for a work-related back and knee injury. The attorney sought $30,000 in fees, but the Board reduced this to $24,000, finding the original request disproportionate. The Appellate Division, Third Department, affirmed the Board's decision, emphasizing the Board's broad discretion under Workers' Compensation Law § 24. The court concluded that the awarded fee was commensurate with the services rendered, noting the claim's early acceptance and lack of contentious or complex issues.

Workers' CompensationCounsel FeesAttorney FeesSettlement AgreementFee ReductionAppellate ReviewDiscretionary AuthorityBoard DecisionWork-related InjuryBack Injury
References
6
Case No. ADJ1452726 (RIV 0075376)
Regular
Jul 29, 2009

MARCIAL BOLANOS vs. MERIT MASONRY, STATE COMPENSATION INSURANCE FUND

The appeals board reversed the July 29, 2009 award because the applicant never filed a claim form, and the defendant is not estopped from asserting this.

Workers' Compensation Appeals BoardMerit MasonryState Compensation Insurance FundMarcial BolanosDean H. Shapiro D.C.ADJ1452726RIV 0075376Opinion and Order Granting ReconsiderationFindings and AwardLabor Code section 5401(a)
References
1
Case No. MISSING
Regular Panel Decision

Claim of Thomasula v. Wilson Concrete & Masonry

Claimant sought workers' compensation benefits for a left shoulder injury sustained during employment. The Workers' Compensation Board denied the claim, finding claimant's testimony not credible due to a delay in seeking medical attention, failure to file an accident report, and admitting to misrepresenting the injury as non-work-related for private insurance. Claimant appealed, but the appellate court affirmed the Board's decision, upholding the Board's authority to resolve credibility issues. The court found substantial evidence supported the determination that the injury was not work-related. Claimant's remaining arguments were considered and rejected as lacking merit.

Workers' CompensationCredibility AssessmentAccidental InjuryEmployment InjuryMedical Attention DelayAccident ReportInsurance MisrepresentationAppellate ReviewSubstantial EvidenceBoard's Authority
References
3
Case No. 2017 NY Slip Op 05217 [151 AD3d 1050]
Regular Panel Decision
Jun 28, 2017

March Associates Construction, Inc. v. CMC Masonry Construction

This case involves an appeal in a declaratory judgment action concerning indemnification obligations stemming from an underlying wrongful death lawsuit. March Associates Construction, Inc., and other plaintiffs (respondents), sought a declaration that Blue Ridge Construction, Inc., and its insurers (defendants/appellants), were obligated to indemnify them in a wrongful death action and reimburse $300,000 paid in settlement. The wrongful death action arose from a construction accident where an alleged employee of Blue Ridge fell and died. The Supreme Court initially granted summary judgment to the plaintiffs and denied the defendants' cross-motion. On appeal, the Appellate Division modified the order by reversing the grant of summary judgment to the plaintiffs, finding they failed to eliminate triable issues of fact regarding the decedent's employment status. The Court affirmed the denial of the defendants' cross-motion, concluding that a settlement stipulation in the underlying action did not bar the indemnification claims and that the defendants also failed to resolve factual issues concerning the decedent's employment and Blue Ridge's negligence.

Declaratory JudgmentIndemnificationCommon-law IndemnificationSummary JudgmentWrongful DeathConstruction AccidentLabor Law ViolationsInsurance Coverage DisputeEmployee StatusRes Judicata Defense
References
19
Case No. ADJ8534803 (MF) ADJ8535153
Regular
Nov 01, 2013

Randy Graves vs. Roy's Concrete & Masonry, Inc., Farmers Insurance

The Workers' Compensation Appeals Board affirmed a judge's finding that the applicant was not an employee of Roy's Concrete & Masonry, Inc. This decision was based on the judge's determination of the applicant's lack of credibility, citing inconsistencies in his testimony regarding pay and treatment history. The Board found that the judge's credibility assessment was entitled to great weight and that a formal Borello analysis was not required due to the absence of credible evidence of an employment relationship. Consequently, the applicant's claim for workers' compensation benefits was denied.

WCABReconsiderationEmployment relationshipCredibilitySubstantial evidenceBorello analysisTractor operatorRoy's Concrete & MasonryFarmers InsuranceWCJ
References
3
Case No. MISSING
Regular Panel Decision

Trustees of the Bricklayers v. Charles T. Driscoll Masonry Restoration Co.

Plaintiffs, various Bricklayers and Allied Craftworkers locals and their funds, sued Charles T. Driscoll Masonry Restoration Company, Inc. and Stephen Driscoll under ERISA and LMRA to recover contributions to the Funds. The core of the dispute was the interpretation of a "traveling contractors clause" in a collective bargaining agreement, which plaintiffs argued obligated the Company to pay benefits to Local 5 for work performed outside its territorial jurisdiction. The court, presided over by Judge McMahon, found the contract language unambiguous, concluding the clause applied only to Local 5 masons sent to work elsewhere, a situation for which no evidence was presented. Consequently, the court denied the plaintiffs' motions for summary judgment and to amend the complaint, granted the defendants' motion to strike in part, and granted the defendants' motion for summary judgment, resulting in the dismissal of the case against all defendants.

ERISA EnforcementLMRA ClaimsCollective Bargaining Agreement InterpretationTraveling Contractors ClauseDelinquent ContributionsMultiemployer Pension PlansSummary Judgment MotionContract AmbiguityUnion Jurisdictional DisputeDecertification Election
References
23
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