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

Case No. 2025 NY Slip Op 03670 [239 AD3d 1157]
Regular Panel Decision
Jun 18, 2025

Matter of Lo (Go N.Y. Tours Inc.--Commissioner of Labor)

Yero Lo, a street ticket seller for Go New York Tours Inc. (TopView Sightseeing), applied for unemployment insurance benefits after TopView's closure due to the COVID-19 pandemic. The Department of Labor initially determined TopView was the employer and liable for contributions. An Administrative Law Judge overruled this, finding Lo and others were independent contractors. The Unemployment Insurance Appeal Board reversed the ALJ, concluding that ticket sellers were employees, making TopView liable. The Appellate Division, Third Department, affirmed the Board's decision, citing substantial evidence of TopView's control over the ticket sellers, including training, providing equipment, setting parameters for sales, and restricting other employment.

Unemployment InsuranceEmployee ClassificationIndependent ContractorStreet Ticket SellerSightseeing Tour BusControl TestAppellate ReviewSubstantial EvidenceDepartment of LaborUnemployment Insurance Appeal Board
References
5
Case No. MISSING
Regular Panel Decision

Johnson v. D.M. Rothman Co.

Plaintiffs Talbert Johnson and Troy Saunders sued their employer, D.M. Rothman Company, Inc., for unpaid overtime wages under the FLSA, NYLL, and LMRA, alleging Rothman failed to include certain wage differentials in overtime calculations as per their Collective Bargaining Agreement. Rothman counterclaimed for overpayment of wages and moved for summary judgment. The court granted summary judgment in part, dismissing claims related to grandfather and hi-lo pay due to LMRA preemption, as these required interpretation of the CBA. For night differential claims, the court found Rothman's overpayments largely offset any FLSA overtime owed, dismissing most of these claims. Johnson's LMRA claim was time-barred, while Saunders' LMRA claim regarding hi-lo pay remained potentially viable.

OvertimeFLSANYLLLMRAWage DifferentialsCollective Bargaining AgreementSummary JudgmentGrievance ProceduresStatutory RightsPreemption
References
32
Case No. MISSING
Regular Panel Decision

Murach v. Island of Bob-Lo Co.

A stunt diver employed by Maxwell Associates, Inc. sustained a severe injury, quadriplegia, on June 23, 1990, while performing an aerial act for Fantasy Island. The plaintiff fell from a 10-foot diving board after losing his grip, striking the edge of the pool. The court affirmed the denial of summary judgment motions by both defendants and the plaintiff, concluding that Arts and Cultural Affairs Law § 37.09 (1) applies and a cause of action was stated under it. The court determined the injury occurred during an aerial performance, not a dive, rejecting the assumption of risk defense. However, Fantasy Island cannot be held strictly liable as the statute is not analogous to Labor Law § 240 (1).

Stunt diver injuryAerial performance safetyAssumption of risk defenseArts and Cultural Affairs LawLabor Law § 240 (1) analogySummary judgmentAppellate reviewDue ProcessQuadriplegiaWorkplace safety standards
References
3
Case No. MISSING
Regular Panel Decision

Lo Dolce v. Regional Transit Service, Inc.

The case involves an appeal from a Workers’ Compensation Board decision. The claimant was discharged due to lost time resulting from an employment-related accident, which was found to be a violation of Workers’ Compensation Law section 120. The employer’s argument about an absenteeism policy was deemed irrelevant because the discharge was directly linked to the work-related injury, and their policy explicitly covered such incidents. The appellate court affirmed the Board's decision, concluding that the employer failed to demonstrate any error of law and that the decision was supported by substantial evidence.

Wrongful TerminationEmployment RetaliationAbsenteeism PolicySubstantial EvidenceAppellate ReviewStatutory Violation
References
0
Case No. GOL 96757
Regular
Jun 10, 2008

SA YANG LO vs. CUSTOM SENSORS & TECHNOLOGIES, INC., STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied reconsideration of a prior award, upholding the application of the 2005 Permanent Disability Rating Schedule. The Board found that exceptions allowing for the 1997 Schedule did not apply, as the applicant's temporary disability indemnity extended beyond January 1, 2005, and no qualifying pre-2005 reports indicated permanent disability. Furthermore, the Board found the applicant's vocational expert's opinion regarding diminished future earning capacity unpersuasive, thus affirming the initial 9% permanent disability rating.

Workers' Compensation Appeals BoardSA Yang LoCustom Sensors & TechnologiesInc.State Compensation Insurance FundGOL 96757Opinion and Order Denying ReconsiderationFindings and AwardWorkers' Compensation Administrative Law JudgeWCJ
References
14
Case No. FRE 218718 FRE 215344 FRE 215345
Regular
Jul 09, 2007

SHAEANN YOUNG vs. SAVE MART, permissibly self-insured and administered by PEGASUS RISK MANAGEMENT

The Workers' Compensation Appeals Board denied reconsideration of an award to Shaeann Young, finding that her nolo contendere plea to misdemeanor insurance fraud did not bar her from receiving benefits. The Board determined that Young had sustained actual industrial injuries, that the awarded compensation was supported by substantial medical evidence unrelated to the fraud, and that her credibility was not entirely destroyed. Consequently, Young remains entitled to the temporary disability indemnity and medical treatment benefits.

nolo contendereinsurance fraudcompensable industrial injurymedical treatmenttemporary disability indemnitypermanent disability indemnityTensfeldtGarzaworkers' compensation administrative law judgepanel qualified medical evaluator
References
2
Case No. ADJ6641753
Regular
Jul 26, 2011

JESSIE BURKE vs. AP EXPRESS WORLDWIDE LLC, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted reconsideration to amend a finding regarding intoxication. While the initial judge found the applicant sustained an industrial injury, the defendant contested this, arguing the applicant's DUI plea barred recovery under Labor Code section 3600(a)(4). The Board affirmed the industrial injury finding but amended the specific finding to state the defendant failed to meet its burden of proof in establishing intoxication as a proximate cause. The Board gave significant weight to the trial judge's credibility determination and the applicant's argument that a nolo contendere plea to a misdemeanor is not an admission in civil cases.

Labor Code section 3600(a)(4)nolo contenderePenal Code section 1016.3proximate causeintoxicationburden of proofsubstantial evidencecredibility determinationindustrial injuryState Compensation Insurance Fund
References
0
Case No. MISSING
Regular Panel Decision
Mar 21, 1980

In re the Claim of Griffin v. Eastman Kodak Co.

This case concerns an appeal from a Workers' Compensation Board decision dated March 21, 1980. The core issue examines whether an employer violates Workers' Compensation Law section 120 by terminating an employee for excessive absences, particularly when the final absence is due to a compensable work-related injury. The court, citing Matter of Lo Dolce v Regional Tr. Serv., found that the employer's argument, distinguishing the current case based on prior non-work-related absences, lacked merit. Consequently, the appellate court affirmed the Board's decision, concluding that the employer had indeed violated section 120. The court noted that a contrary ruling would deter employees from reporting work-related injuries and seeking compensation.

Workers' Compensation LawEmployee TerminationAbsenteeismWork-related InjurySection 120 ViolationEmployer LiabilityAppellate DecisionPrecedentRetaliatory DischargeStatutory Interpretation
References
2
Case No. 2022 NY Slip Op 06043 [209 AD3d 1205]
Regular Panel Decision
Oct 27, 2022

Colucci v. Rzepka

Plaintiffs Lora Colucci and Yar-Lo, Inc. commenced a legal malpractice action against attorney Thomas J. Rzepka and several law firms. The malpractice claims stemmed from Rzepka's prior representation of the plaintiffs in actions against Travelers Indemnity Company and Stuyvesant Plaza, which resulted in the dismissal of their claims due to a failure to timely submit expert affidavits. The defendant law firms moved to dismiss the malpractice complaint as time-barred. The Supreme Court granted these motions, and the Appellate Division affirmed, holding that the action was indeed commenced after the three-year statute of limitations had accrued. The court rejected the plaintiffs' argument that the statute of limitations was tolled until the appeal of the underlying Stuyvesant Plaza action was resolved, as that appeal was not 'likely to succeed' under the standard set forth in Grace v Law.

Legal MalpracticeStatute of LimitationsAppellate PracticeSummary JudgmentAttorney RepresentationExpert DisclosureCausationTolling Statute of LimitationsGrace v LawDismissal
References
12
Case No. MISSING
Regular Panel Decision
Aug 12, 1987

Pesce v. City of New York

Paolo Pesce, an employee of Arthur Tickle Engineer Works, Inc., and his wife sued the City of New York and Arthur Tickle for personal injuries Pesce sustained when he fell from a hi-lo vehicle after it hit a pothole on a City street. A jury initially found the City 10% at fault and Arthur Tickle 90% at fault, with Pesce not contributorily negligent. On appeal, the defendants challenged the finding of proximate cause and argued for Pesce's contributory negligence. The appellate court found the trial court's jury instruction on contributory negligence, particularly regarding a subordinate obeying a dangerous direction from a superior, was erroneous and confusing, as it improperly suggested contributory negligence might not be found as a matter of law. Due to this confusing charge, the order was reversed, and a new trial was ordered on the issue of liability.

Personal InjuryNegligenceContributory NegligenceProximate CauseMunicipal LiabilityHighway DefectPothole AccidentEmployer LiabilityJury Charge ErrorNew Trial
References
13
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