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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

Heagney v. European American Bank

Plaintiffs in this action allege that the defendant, European American Bank, discriminated against them based on age, violating the Age Discrimination in Employment Act (ADEA). The plaintiffs sought the court's authorization to proceed as an "opt-in" class action and to send notice to potential class members. The Court granted the motion, concluding that the case may proceed as an opt-in class suit, broadly defining the class to include employees whose employment was terminated through various mechanisms, not just early retirement, between June 1, 1984, and December 31, 1985. Furthermore, the Court determined that plaintiffs' counsel could provide written notice to other potential class members without requiring formal court authorization, citing recent Supreme Court rulings on attorney advertising and finding no legal precedent to prohibit such notice. The Court also found that the administrative filing requirements under the ADEA were satisfied for the class.

Age DiscriminationADEAClass ActionOpt-in ClassClass CertificationAttorney AdvertisingSolicitation of ClaimsEEOC Administrative ChargeFair Labor Standards ActEarly Retirement Incentive Program
References
20
Case No. MISSING
Regular Panel Decision

Smith v. Tubal-Cain Industries, Inc.

Plaintiff, an employee of Tubal-Cain Industries, Inc., was required to enroll in an Occupational Injury Benefit Plan after the employer opted out of workers' compensation insurance. The enrollment form and plan exclusions (§ 5.4(u)) required the plaintiff to waive statutory causes of action, including the Texas Workers' Compensation Act and various civil rights acts, and mandated binding arbitration. Plaintiff sustained an injury and sued Tubal-Cain for negligence, leading to the case's removal to federal court based on alleged ERISA preemption. The court rejected the defendant's argument that ERISA justifies stripping employees of their rights and found the waivers invalid as contrary to public policy. Citing 28 U.S.C. § 1445(c) and previous rulings, the court determined that negligence actions against non-subscribing employers arise under state workers' compensation laws and are not removable to federal court. Therefore, the federal court remanded the case back to the state court.

Workers' CompensationERISA PreemptionWaiver of RightsNon-subscriber EmployerRemandFederal JurisdictionState Law ClaimsTexas LawOccupational Injury Benefit PlanArbitration Clause
References
7
Case No. MISSING
Regular Panel Decision
Jan 06, 1997

Thompson v. Ludovico

The plaintiff appealed an order that granted the defendant's motion for summary judgment dismissing causes of action under Labor Law §§ 240 and 241, and denied the plaintiff's cross-motion for leave to amend his bill of particulars. The court affirmed the order, reasoning that the plaintiff's injury, sustained when a truck crane's boom slipped and crushed his arm, was not an elevation-related risk covered by Labor Law § 240 (1) but a usual and ordinary construction site danger. Furthermore, the denial of leave to amend the bill of particulars was upheld due to the plaintiff's gross laches, as more than five years elapsed without explanation. Additionally, the Industrial Code sections cited in the proposed amendment were deemed either general safety standards or inapplicable to the case, further supporting the dismissal of the Labor Law § 241 (6) cause of action.

Personal InjuryConstruction AccidentLabor Law 240(1)Labor Law 241(6)Summary JudgmentBill of ParticularsAmendmentLachesIndustrial CodeElevation-Related Risk
References
10
Case No. MISSING
Regular Panel Decision

1199seiu Nat'l Benefit Fund v. Allergan, Inc. (In re Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust Litig.)

This multi-district litigation addresses defendant Allergan's alleged anticompetitive efforts to delay FDA approval of generic versions of its dry-eye medication, Restasis®. Plaintiffs, comprising Direct Purchaser Plaintiffs and End-Payor Plaintiffs, contend Allergan engaged in various unlawful strategies, including filing sham citizen petitions, defrauding the USPTO to secure "second-wave" patents, wrongfully listing these patents, initiating sham patent infringement lawsuits, and transferring patents to a Native American tribe to invoke sovereign immunity. Allergan moved to dismiss the consolidated complaints, asserting that plaintiffs failed to plausibly allege that its actions caused any delay in generic market entry. The court, however, denied Allergan's motion, concluding that the plaintiffs had adequately pleaded that Allergan's aggressive and persistent tactics could have effectively delayed competition.

AntitrustPharmaceutical IndustryGeneric DrugsFDA ApprovalPatent InfringementCitizen PetitionsHatch-Waxman ActMonopolyRestasisDry Eye Medication
References
34
Case No. 2022 NY Slip Op 00945 [202 AD3d 509]
Regular Panel Decision
Feb 10, 2022

O'Flaherty v. Columbo

Plaintiff Brian O'Flaherty alleges severe, permanent injuries from an assault by employees of defendant Burgess at a construction site. Plaintiff sued multiple defendants, including TJM Construction, a subcontractor, which then initiated third-party actions against plaintiff's employer, Jackson Installation. Jackson Installation moved for summary judgment arguing the claims were barred by Workers' Compensation Law exclusivity provisions as no "grave injury" was alleged. The motion court properly denied Jackson Installation's motion, finding it failed to prima facie establish that plaintiff's injuries were not "grave." The court also found TJM Construction's argument regarding incomplete discovery on plaintiff's medical condition sufficient to deny the motion as premature. The Appellate Division, First Department, unanimously affirmed the lower court's decision.

Construction site injuryAssaultWorkers' Compensation LawGrave injurySummary judgmentCommon-law indemnificationContributionDiscoveryPremature motionAppellate review
References
5
Case No. 2022 NY Slip Op 06161
Regular Panel Decision
Nov 03, 2022

Cotroneo v. Van Wagner Sign Erectors, LLC

Plaintiff Cosmo Cotroneo appealed an order granting defendants' motions for summary judgment dismissing a Labor Law § 240 (1) claim and denying plaintiff's motion for summary judgment on Labor Law §§ 240 (1) and 241 (6) claims. The Appellate Division affirmed the dismissal of the Labor Law § 240 (1) claim, determining that the falling gang box lid was a routine workplace risk and not a material requiring hoisting or securing under the statute. However, the court modified the order to grant plaintiff's motion for summary judgment on the Labor Law § 241 (6) claim, finding that missing struts on the gang box constituted a liability as they were safety devices. The defendants' arguments regarding plaintiff's comparative negligence for damaging the struts were found to be speculative. Additionally, the court confirmed that the Van Wagner/Outfront defendants were proper Labor Law defendants, acting as general contractors and agents of the owner.

Construction AccidentLabor LawSummary JudgmentAppellate DivisionGravity-Related RiskGang BoxSafety DevicesComparative NegligenceOwner's AgentGeneral Contractor
References
11
Case No. MISSING
Regular Panel Decision

Moore v. Eagle Sanitation, Inc.

Plaintiffs Kevin Moore and Roger Snyder filed a lawsuit against Eagle Sanitation Inc. and Michael Reali, seeking unpaid overtime compensation under the Fair Labor Standards Act (FLSA) and New York Labor Law. They moved for conditional certification as an FLSA collective action, production of contact information for potential class members from April 2005 to April 2011, and court authorization to circulate a Notice of Pendency. The court, presided over by Magistrate Judge A. Kathleen Tomlinson, granted the motion for conditional certification, finding that the plaintiffs met the lenient evidentiary standard required at this stage. Additionally, the court granted the request for defendants to produce contact information for a six-year period to account for state law claims, emphasizing judicial economy. The court also authorized the dissemination of the proposed notice, with minor modifications regarding the inclusion of defense counsel's contact details and clarification on potential costs and discovery obligations for opt-in plaintiffs.

FLSACollective ActionOvertime CompensationNew York Labor LawConditional CertificationNotice of PendencyStatute of LimitationsDiscovery of Class MembersWage and Hour DisputeEmployment Law
References
26
Case No. MISSING
Regular Panel Decision
Dec 29, 2010

Lindberg v. UHS OF LAKESIDE, LLC

Plaintiffs Cherie Lindberg and Grady Moody filed a motion for conditional class certification under the FLSA against Defendants UHS of Lakeside, LLC, Community Behavioral Health, LLC, and Universal Health Services, alleging unpaid overtime due to an automatic 30-minute meal break deduction policy. The policy applied to all non-exempt employees, regardless of whether they actually took a break, and placed the burden on employees to reverse the deduction via time adjustment forms, which management allegedly discouraged or ignored. The Court applied a lenient "notice stage" standard and found that Plaintiffs made a modest factual showing that they and other putative class members were victims of a common practice leading to improper compensation. The Court granted the motion for conditional class certification for all present and former hourly employees of the defendants who worked at the Memphis, Tennessee facilities from January 7, 2007, to the present. The Court also ordered defendants to provide contact information for potential opt-in plaintiffs and directed parties to submit a mutually acceptable notice letter.

FLSAOvertime PayMeal Break DeductionConditional Class CertificationCollective ActionWage and HourHealthcare EmployeesAutomatic Deduction PolicyUnpaid WorkEmployee Compensation
References
30
Case No. 2018 NY Slip Op 06248 [164 AD3d 1458]
Regular Panel Decision
Sep 26, 2018

Neve v. City of New York

Plaintiff Anthony Neve, a New York City Sanitation worker, was allegedly injured when the seat of a street sweeper he operated collapsed. He sued the City of New York for negligence. The City initiated third-party actions against Johnston Sweeper Company (manufacturer) and Seats, Inc. (seat manufacturer). Following the City's disposal of the sweeper, the plaintiff was granted an adverse inference charge for spoliation of evidence. Both the plaintiff and Johnston Sweeper Company moved for summary judgment, which the Supreme Court denied. The Appellate Division affirmed the Supreme Court's order, clarifying that the adverse inference charge did not eliminate the plaintiff's burden to prove all elements of his negligence claim, including the defect's existence and causation.

spoliation of evidencesummary judgmentadverse inferencenegligencepersonal injurythird-party actionproduct liabilityappellate reviewmunicipal liabilitysanitation worker
References
4
Case No. 2023 NY Slip Op 03329
Regular Panel Decision
Jun 21, 2023

Castro v. Wythe Gardens, LLC

The plaintiff, a construction worker, sustained injuries after tripping in a gap between a staircase step and landing. He initiated an action against Express Builders, the general contractor, alleging violations of Labor Law sections 240(1) and 241(6). Express Builders then filed third-party claims seeking contractual indemnification. The Supreme Court initially granted the plaintiff's motion for summary judgment on liability and dismissed a third-party indemnification claim. The Appellate Division modified this ruling, determining that Labor Law section 240(1) and 12 NYCRR 23-1.7(b)(1)(i) were not applicable to the plaintiff's injuries as they did not involve elevation-related risks or a hazardous opening for a complete fall. However, the court affirmed the summary judgment for the plaintiff under Labor Law section 241(6), based on 12 NYCRR 23-1.7(e)(1) pertaining to tripping hazards. The Appellate Division also reinstated the contractual indemnification claim against Bayport Construction Corp., citing triable issues of fact, and upheld the denial of Express Builders' indemnification claims against Urban Precast and Urban Erectors due to unresolved questions regarding Express Builders' own negligence.

Construction AccidentLabor LawIndustrial Code ViolationSummary Judgment MotionContractual IndemnificationTripping HazardElevation-Related RiskAppellate DivisionPersonal InjurySubcontractor Agreement
References
17
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