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

Case No. 2022 NY Slip Op 05964 [209 AD3d 596]
Regular Panel Decision
Oct 25, 2022

Pirozzo v. Laight St. Fee Owner LLC

Plaintiff Paul Pirozzo sought summary judgment on his Labor Law § 240 (1) claim against defendants Laight Street Fee Owner LLC, Laight Street Fee Owner II LLC, and Sciame Construction, LLC, which was granted by the Supreme Court. The Appellate Division, First Department, affirmed this decision. The plaintiff established a prima facie case by demonstrating that the scaffold he was working on collapsed without an apparent reason. The defendants' arguments that the plaintiff was the sole proximate cause, either by failing to lock scaffold pins or remaining on the scaffold while it was moved, were deemed unavailing. The court noted that these actions, even if proven, would amount to comparative negligence, which is not a defense to a Labor Law § 240 (1) claim, and there was no evidence of specific instructions to the plaintiff that were disobeyed.

Summary judgmentLabor Law § 240 (1)Scaffold collapseSole proximate causeComparative negligenceWorkers' compensation Form C-2Hearsay objectionPersonal knowledgeRecalcitranceAppellate Division
References
9
Case No. 04-MD-1596
Regular Panel Decision
Mar 20, 2006

In Re Zyprexa Products Liability Litigation

This order by Senior District Judge Weinstein addresses legal fee allocation in a coordinated multi-district litigation against Eli Lilly & Company concerning the prescription drug Zyprexa. Following a partial settlement covering approximately 8,000 individual plaintiffs, the court adopted a proposal from special settlement masters regarding fee caps. The court modified the proposed cap, reducing it from 37.5% to 35% for most recoveries, while maintaining a 20% cap for "Track A" settlements. The special masters are granted discretionary authority to adjust fees within a range of 30% to 37.5% based on individual case circumstances, with appeal rights to the court. The decision emphasizes the court's inherent authority to supervise attorney fees, particularly in quasi-class actions and mass litigations, to ensure fairness and prevent excessive charges to clients, drawing parallels to class action rules and state laws limiting contingent fees.

Mass TortMulti-District LitigationFee AllocationContingency FeesAttorney FeesEthical SupervisionSettlementZyprexa LitigationQuasi-Class ActionJudicial Discretion
References
23
Case No. MISSING
Regular Panel Decision

In re Currency Conversion Fee Antitrust Litigation

This Memorandum and Order addresses plaintiffs' motion for reconsideration of a prior decision concerning a class action alleging an antitrust price-fixing conspiracy by VISA, MasterCard, and their member banks related to foreign currency conversion fees. The Court denied the plaintiffs' motion for reconsideration, upholding its earlier finding that network defendants did not waive their right to arbitration because compelling arbitration would have been futile under then-existing law. Additionally, the Court denied reconsideration on several other procedural matters, including the creation of subclasses, membership of specific cardholder subclasses, representation of Diners Club and Providian cardholders, and a request for further discovery, citing the untimeliness of new arguments and the plaintiffs' failure to meet the burden of proof for class certification requirements.

Antitrust LitigationClass Action ProcedureArbitration AgreementsWaiver of ArbitrationEquitable EstoppelForeign Currency Conversion FeesReconsideration MotionSherman ActTruth in Lending ActDeceptive Trade Practices
References
43
Case No. MISSING
Regular Panel Decision

Yeshiva University v. New England Educational Institute, Inc.

In a Lanham Act action, defendants, who prevailed after a jury trial against plaintiff Yeshiva, sought approximately $50,000 in attorney's fees. The application presented a novel question: whether a prevailing defendant is entitled to fees when the plaintiff's liability claims were asserted in good faith but the damage claims were grossly exaggerated. The court first affirmed the applicability of the Lanham Act's attorney fee provision, § 35(a), to actions involving unregistered marks, citing precedent. Despite acknowledging the plaintiff's highly exaggerated damage claims, the court determined that the case, which was close on the merits regarding the initial copying allegations, did not meet the 'exceptional cases' standard required for awarding attorney's fees to a prevailing defendant. Consequently, the defendants' application for attorney's fees was denied.

Lanham ActAttorney's FeesPrevailing DefendantExceptional CasesUnregistered MarkDamage ClaimsExaggerated DamagesGood Faith LitigationJury VerdictNon-profit Dispute
References
7
Case No. MISSING
Regular Panel Decision

King v. Allied Vision, Ltd.

This case involves a plaintiff's motion for attorney's fees following a remand from the Second Circuit Court of Appeals. Plaintiff Stephen King sought fees due to defendant New Line Cinema's contempt of court for numerous violations of a Final Consent Decree concerning the misattribution of 'The Lawnmower Man' film. The District Court had previously found the defendant in contempt and awarded fees in 1994 and 1995. The Second Circuit affirmed some parts of the 1994 order but vacated others, along with the entire 1995 order, remanding the attorney's fees issue for reconsideration, specifically questioning the willfulness of the noncompliance. Upon review, this court concluded that while the defendant's conduct was negligent and contumacious, it did not meet the clear and convincing evidence standard for willfulness required for an award of attorney's fees for civil contempt under Second Circuit law. Consequently, the plaintiff's motion for attorney's fees was denied.

Civil ContemptAttorney's FeesWillfulness StandardSecond Circuit RemandConsent Decree ViolationsLanham ActFilm MisattributionThe Lawnmower ManInjunctive ReliefCompensatory Damages
References
27
Case No. MISSING
Regular Panel Decision
Feb 21, 2014

Marin v. Constitution Realty, LLC

This case involves an appeal from an order regarding the division of attorneys' fees among Sheryl Menkes (appellant), David B. Golomb, and Jeffrey A. Manheimer (respondents). Menkes, attorney of record for plaintiffs in a personal injury action, had agreements with both Golomb and Manheimer for fee sharing. The primary dispute concerned Golomb's share, contingent on whether the case settled at a specific mediation session (12% fee) or later (40% fee). The court affirmed the lower court's decision, finding the contract unambiguous that the mediation session concluded on a specific date, entitling Golomb to the higher fee, and that Manheimer was entitled to 20% as per his agreement. The court rejected Menkes's arguments based on contract interpretation and professional conduct rules.

Attorney's FeesContract InterpretationMediation AgreementFee DisputePersonal Injury ActionQuantum MeruitProfessional ConductNew York LawSettlement NegotiationsStructured Settlement
References
13
Case No. MISSING
Regular Panel Decision

Claim of Zizolfo v. Western Electric Co.

This case involves an appeal from a Workers’ Compensation Board decision, filed on November 29, 1978, concerning an attorney's fee. The claimant's attorney, designated as the appellant, sought an additional $1,500 fee, contending that the initial $500 awarded by a referee was inadequate. The Board, however, determined that the appellant had been sufficiently compensated for services rendered. The appellate court, referencing section 24 of the Workers’ Compensation Law, affirmed the Board's decision, asserting that its determination on attorney's fees would only be disturbed if the fee was arbitrarily, capriciously, or unreasonably low. Finding no such grounds, the court upheld the Board's original ruling.

Attorney's FeesAppellate ReviewBoard DecisionFee DisputeJudicial DiscretionCompensation AwardsLegal ServicesAffirmationAdministrative Appeal
References
2
Case No. MISSING
Regular Panel Decision

Jackson v. New York City Department of Transportation

The claimant, who sustained work-related injuries on December 20, 2011, retained Joel Fredericson as a licensed representative. Fredericson initially received a $2,450 fee in 2012. After further proceedings and an award of $202,689.44 to the claimant, Fredericson applied for an additional fee of $28,000 for 61 hours of work. The Workers' Compensation Law Judge (WCLJ) subsequently awarded Fredericson $10,700. Fredericson appealed this to the Workers’ Compensation Board, requesting an increase to $16,500. The Board, however, reduced his fee to $450, citing an insufficient and inaccurate fee application (form OC-400.1) with significant discrepancies compared to his earlier submission. This court affirmed the Board's decision, emphasizing the Board's broad discretion in approving counsel fees and upholding the reduction due to the severe deficiencies in Fredericson's fee application.

Fee DisputeAttorney FeesRepresentative FeesWorkers' Compensation LawBoard DiscretionFee ApplicationForm OC-400.1Counsel FeesAppellate ReviewSchedule Loss of Use
References
3
Case No. MISSING
Regular Panel Decision

Maxwell v. State Farm Mutual Automobile Insurance

This is an appeal concerning the award of counsel fees in a no-fault automobile accident case. The plaintiff appealed the Trial Term's decision denying an excess counsel fee award, which was initially granted at the statutory maximum. Plaintiff argued that the case involved novel issues related to an exclusion clause and the basis for disclaimer under No-Fault Law, warranting higher fees. The appellate court affirmed the Trial Term's decision, finding that the issues, while skillfully handled, were not sufficiently novel or unique to justify an excess fee under 11 NYCRR 65.16 (c) (8) (vii), as they relied on established contract law and statutory construction. The court also rejected the plaintiff's constitutional challenge regarding the impairment of contracts, clarifying that the fee limitation only applies to the insurer, not the client, and dismissed an ex parte communication claim as outside the record.

No-Fault BenefitsCounsel FeesExcess Fee AwardStatutory InterpretationContract Law PrinciplesConstitutional ChallengeImpairment ClauseAppellate DivisionInsurance RegulationsLegal Practice
References
8
Case No. ADJ4039795
Regular
Feb 03, 2010

Errol Holmes vs. SHELL OIL COMPANY, ESIS/EMPLOYERS SELF-INSURANCE SERVICES

Applicant's attorney sought additional fees for opposing Shell Oil's writ of review, which the Court of Appeal granted, remanding for supplemental fees. The Appeals Board initially awarded $3,000 based on estimated hours and a reasonable rate after no response was received to a request for itemized fees. The applicant's attorney then claimed he did not receive the request and sought $5,751.57 in fees. Despite treating his letter as a reconsideration petition, the Appeals Board reviewed the matter again and reaffirmed the $3,000 award, finding it adequate and denying any additional compensation.

Workers' Compensation Appeals BoardErrol HolmesShell Oil CompanyESISEmployers Self-Insurance ServicesPetition for Writ of ReviewSupplemental Attorney FeesLabor Code § 5801Petition for ReconsiderationLabor Code § 5902
References
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