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

Case No. ADJ6894498, ADJ6896838
Regular
Jun 26, 2012

Mark Fields vs. CITY OF CATHEDRAL CITY

The WCAB granted reconsideration of the applicant's unverified petition, as failure to verify is not jurisdictional but subject to dismissal discretion. Despite notice, the applicant's attorney failed to cure the verification defect, leading to a notice of intention to sanction the attorney. The Board will now determine sanctions and address the merits of the underlying workers' compensation claims.

Unverified PetitionLabor Code Section 5902WCJ ReportDiscretionary DismissalSanction NoticeBad-Faith ConductFrivolous TacticWillful FailureDue ProcessPaper Record
References
6
Case No. 05-11-01425-CV
Regular Panel Decision
Mar 21, 2014

Wells Fargo Bank, N.A. v. Leath, Lonzie

Justice FitzGerald dissents from the denial of appellant's motion for rehearing en banc, arguing that the appellee failed to provide adequate notice regarding a constitutional defect in the mortgage. The dissent contends that the general pleading submitted by the appellee lacked sufficient detail for Wells Fargo to effectively utilize the 60-day cure period. Drawing an analogy to the requirements for attorneys’ fees under the Texas Civil Practice and Remedies Code, Justice FitzGerald asserts that such a broad notice should not trigger the cure period, as it would make the lender's ability to cure contingent on the debtor’s cooperation. Therefore, the dissenting justice believes the motion for rehearing en banc should have been granted.

Mortgage LawConstitutional LawNotice RequirementsCure PeriodAppellate ProcedureEn Banc RehearingTexas Civil Practice and Remedies CodeAttorneys' FeesReal Estate LawBanking Law
References
4
Case No. 2016 NY Slip Op 04463 [142 AD3d 34]
Regular Panel Decision
Jun 09, 2016

Matter of Puerto v. Doar

This case addresses the legality of notices provided to public assistance recipients in New York City regarding their failure to comply with mandatory work assessments and employability plans. Petitioner Carol Puerto challenged these notices, arguing they inadequately explained 'good cause' for non-compliance and lacked provisions for curing noncompliance prospectively. The Appellate Division, First Department, modified the Supreme Court's decision, ruling that the challenged notices and the associated regulation, 18 NYCRR 385.11(a)(2), comply with Social Services Law § 341(1). The court also upheld the dismissal of the claim that recipients must be offered a chance to prospectively cure noncompliance. While not a definitive ruling, the court also expressed concern over the HRA's 'autoposting' system for sanctions.

Public AssistanceWork RequirementsNotice ValiditySocial Services LawAdministrative LawDue ProcessMootness DoctrineAppellate ReviewGovernment BenefitsNew York
References
17
Case No. MISSING
Regular Panel Decision

Angulo v. City of New York

In a personal injury action, the defendant City of New York appealed an order from the Supreme Court, Queens County. The original order denied the City's motion to dismiss the complaint for failure to timely serve a notice of claim and granted the plaintiff's cross-motion to deem his notice of claim timely served nunc pro tunc. The plaintiff, injured in May 2005, served his notice of claim in August 2005, which the City rejected as untimely. The Appellate Division reversed the lower court's order, granting the City's motion to dismiss the complaint and denying the plaintiff's cross-motion. The court held that timely service of a notice of claim is a condition precedent to suing the City and that the plaintiff failed to make a timely application for leave to serve a late notice of claim. Furthermore, the court ruled that the plaintiff could not rely on the workers' compensation carrier's notice of claim.

Personal InjuryNotice of ClaimTimelinessCondition PrecedentCPLR 3211(a)(7)General Municipal Law § 50-eDismissal of ComplaintLate Notice of ClaimNunc Pro TuncWorkers' Compensation Carrier
References
7
Case No. MISSING
Regular Panel Decision
May 07, 2007

Lentz v. Spanky's Restaurant II, Inc.

This Amended Order addresses a plaintiff's motion for notice to potential class members in a Fair Labor Standards Act (FLSA) collective action. The plaintiff, a waiter, alleges that defendants Spanky’s Restaurant II, Inc. d/b/a Double Nickel Steakhouse, Lisa West, and Lady West Enterprises, LTD d/b/a Double Nickel Steakhouse violated FLSA by requiring waitstaff to participate in a "tip pool" with expediters who do not customarily receive tips and by failing to display required notice. The court, considering both the Lusardi and Shushan approaches to class certification, denied the plaintiff's motion. The denial was based on the plaintiff's failure to identify a sufficient number of similarly situated individuals and to provide adequate factual evidence beyond conclusory allegations. The court also noted the novelty of defining expediters' eligibility for tip-sharing and concerns about the breadth of the proposed notice. Consequently, the plaintiff's motion for notice to potential class members was denied.

FLSACollective ActionTip PoolingClass CertificationSimilarly SituatedWage and HourEmployment LawFair Labor Standards ActNotice RequirementsDenial of Motion
References
30
Case No. MISSING
Regular Panel Decision

Isereau v. Brushton-Moira School District

This case concerns consolidated appeals from Supreme Court orders granting petitioners Darrell Isereau and Jason K. Houghton leave to file late notices of claim against Brushton-Moira School District. The petitioners, employees of Bette & Cring, LLC, were injured in a construction accident in August 2002, sustaining falls of approximately 15 feet. They sought to file late notices of claim based on alleged incapacitation and the District's actual knowledge of the accident. The respondent District argued prejudice due to late notice and a subsequent insurance disclaimer. The Appellate Division affirmed the Supreme Court's orders, finding no abuse of discretion as the District had actual notice of the essential facts, and the insurance disclaimer was attributed to the District Superintendent's failure, not the petitioners' delay.

Late Notice of ClaimGeneral Municipal LawLabor Law ViolationsPersonal InjurySchool District LiabilityConstruction AccidentFall AccidentActual KnowledgePrejudiceInsurance Disclaimer
References
5
Case No. ADJ5814563
Regular
Nov 19, 2012

MARIA VILLEGAS vs. BURKE WILLIAMS, INC., TRAVELERS SACRAMENTO

The Appeals Board dismissed the lien claimant's Petition for Reconsideration as untimely, unverified, and unserved. The Board also initiated removal and a notice of intention to impose a $250 sanction against the lien claimant and its representative for frivolous conduct, including filing a petition with willful misrepresentations of the record. The lien claimant failed to appear at a lien conference, leading to a Notice of Intention to Dismiss, which formed the basis of the dismissed petition. The Board found the lien claimant's assertion of lack of notice contradicted the record, which showed service of the conference notice.

Notice of Intention to Dismiss LienPetition for ReconsiderationLien claimantRemovalSanctionsLabor Code § 5813Due processVerificationServiceUntimely
References
9
Case No. MISSING
Regular Panel Decision

Stage Stores, Inc. v. Jon Gunnerson

Justice Harvey Brown concurs with the court's decision, which remands an arbitration award because it failed to provide a reasoned basis for rejecting a key contention. Brown argues that the arbitrator's award was not "reasoned" as it completely omitted discussion of Stage's third critical contention regarding Gunnerson's lack of proper notice and opportunity to cure an alleged breach of an employment agreement. He criticizes existing definitions of "reasoned award" as sometimes inadequate, proposing that such awards must offer basic explanations for rejecting key arguments unless those contentions are frivolous or implicitly addressed. Brown concludes that the omission of Stage's dispositive notice-and-cure defense rendered the arbitration award unreasoned under both existing legal precedent and his proposed comprehensive definition.

Arbitration LawContract InterpretationReasoned AwardJudicial ReviewConcurring OpinionEmployment AgreementNotice and CureGood Cause TerminationArbitrator DutiesAppellate Procedure
References
44
Case No. MISSING
Regular Panel Decision

Claim of Miller v. North Shore University Hospital

Claimant, a registered nurse, allegedly exacerbated an abdominal injury in September 1994 while at work, but did not file a workers' compensation claim until May 1996, after undergoing surgery. The workers' compensation carrier subsequently controverted the claim, citing untimely notice. Both a Workers' Compensation Law Judge and the Workers' Compensation Board determined that the claimant failed to provide timely notice to the employer as mandated by Workers’ Compensation Law § 18. On appeal, the court affirmed the Board's decision, concluding that the emergency room report was insufficient to constitute proper notice. Furthermore, the claimant did not meet his burden of proving that the employer was not prejudiced by the delay in notice, as the delay prevented an investigation prior to his surgery.

Timely NoticeEmployer KnowledgePrejudiceAbdominal InjuryRegistered NurseAccident ReportEmergency RoomSurgeryAppellate ReviewWorkers' Compensation Law § 18
References
5
Case No. MISSING
Regular Panel Decision
Nov 25, 1997

Mark v. Board of Education

The Supreme Court, Kings County, denied the petitioners' application for leave to serve a late notice of claim, an order which was subsequently affirmed on appeal. The appellate court found no improvident exercise of discretion in the denial. The petitioners failed to provide a legally acceptable excuse for their almost six-month delay beyond the 90-day statutorily-prescribed period. Additionally, the petitioners did not provide the respondents with actual notice of the essential facts of the claim within the required timeframe. The court noted that the conditions at the accident scene changed to the prejudice of the respondents, preventing their own investigation, and the ladder involved was allegedly discarded immediately after the incident. Filing a Workers’ Compensation claim was also deemed insufficient to satisfy the notice requirements of General Municipal Law § 50-e.

late notice of claimjudicial discretionactual noticeprejudice to respondentchanged conditionsWorkers’ Compensation claimappellate reviewstatutory periodKings Countymunicipal liability
References
8
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