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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

Carollo v. Tishman Construction & Research Co.

The court reviewed postverdict motions in an action under Labor Law sections 240 and 241, where a jury found Tishman Construction and Research Co., Inc. (Tishman), Anthony Muratore Contracting Co., Inc. (Muratore), and Die Under-hill (Die) liable for a laborer's injuries, with Tishman being passively negligent. Tishman's motion to dismiss the verdict was denied, as the court determined Tishman functioned as a 'contractor' or 'owner's agent' under the Labor Law despite its 'construction manager' title. Furthermore, the court granted Tishman's motion for 100% contractual indemnification from Muratore and Die. This decision affirmed the validity of their indemnification clauses, ruling they were not void under General Obligations Law section 5-322.1(1) given Tishman's passive negligence and the parties' insurance provisions. The case underscores the broad interpretation of 'contractor' duties under Labor Law and the enforceability of indemnification agreements between actively and passively negligent parties.

Labor LawWorkplace SafetyConstruction Site InjuryIndemnification AgreementPassive NegligenceActive NegligenceContractual LiabilityGeneral Obligations LawConstruction Manager DutiesSubcontractor Liability
References
4
Case No. MISSING
Regular Panel Decision

Dean v. United States

The government sought reconsideration of the grant of Kevin Dean's coram nobis petition, arguing preclusion and requesting discovery on three elements for coram nobis relief. The court rejected the government's preclusion argument as waived and without merit. It denied discovery on 'continuing legal consequences' and 'compelling reasons,' finding Dean's job termination a clear civil consequence and actual innocence not a prerequisite for the writ. However, the court granted the government's request for discovery on the element of 'undue delay,' allowing inquiry into Dean's awareness of the conviction's collateral civil consequences prior to his termination.

Coram NobisReconsideration MotionExpungement of RecordDue ProcessGuilty PleaCollateral EstoppelRes JudicataCriminal Record AccuracyPublic LewdnessCivil Consequences
References
21
Case No. MISSING
Regular Panel Decision

United States v. Walker

Chief Judge McAvoy considered the motion by Tyrone Walker and Tony Walker to dismiss Count One CCE charges against them, based on the government's alleged failure to prove the 'organizer, supervisor, or manager' element. The court meticulously reviewed testimonial evidence regarding individuals allegedly managed or organized by each defendant in a cocaine distribution network. Judge McAvoy concluded there was a 'minimally sufficient basis' for a rational jury to find that both Walkers managed several individuals, thus satisfying the CCE elements. Consequently, the motion to dismiss was denied, and the identified individuals will be presented to the jury as potential managees.

Continuing Criminal EnterpriseDrug TraffickingCCE ChargesMotion to DismissSufficiency of EvidenceOrganizerSupervisorManagerCocaine DistributionFederal Court
References
13
Case No. MISSING
Regular Panel Decision

Psihoyos v. National Geographic Society

This case concerns a copyright infringement dispute brought by Louis Psihoyos against The National Geographic Society (NGS). Psihoyos alleged that NGS infringed copyrights in his photograph of a dinosaur fossil and an accompanying illustration by publishing similar works in its magazine. NGS moved for summary judgment, arguing the similarities were due to unprotectible elements like common subject matter, or covered by doctrines such as merger and scenes a faire. The court analyzed the substantial similarity of the photographs, illustrations, and overall layout, finding that protectible elements were not substantially similar. Ultimately, the court granted NGS's motion for summary judgment and denied Psihoyos's cross-motion.

Copyright InfringementPhotographyIllustrationSummary JudgmentSubstantial SimilarityMerger DoctrineScenes A FaireIntellectual PropertyArtistic WorksDinosaur Fossil
References
33
Case No. ADJ3533537 (VNO 0556925)
Regular
Apr 14, 2016

Richard Varela vs. Morley Group, National Union Fire Insurance Company of Pittsburgh, Pennsylvania

The Workers' Compensation Appeals Board affirmed an award of $2,737.50 for an expert witness's trial testimony, clarifying that such expenses are permissible costs under Labor Code section 5811. The Board held that the expert's testimony regarding the necessity of home health care services was relevant to the lien claimants' burden of proof, even though the primary injury claim was ultimately unsuccessful. This decision distinguishes between medical-legal expenses and trial witness costs, allowing for the latter when reasonably incurred for essential elements of a lien claim. The Board found the expert's testimony necessary for the lien claimants to establish all elements of their case.

Workers' Compensation Appeals BoardSupplemental Findings of Fact and OrderLabor Code section 5811lien claimantshome health care servicesexpert testimonytrial testimonyreasonableness and necessityinjury AOE/COEmedical-legal expenses
References
0
Case No. MISSING
Regular Panel Decision

Turner v. Montgomery Ward & Co.

This case involves a patent infringement suit concerning United States Patent No. 3,690,495, a child-resistant closure. The defendant moved for summary judgment, arguing the patent was invalid due to obviousness under 35 U.S.C. § 103. The court examined the patent's clutching and biasing functions, comparing them to prior art patents including Maki, Turner '411, and Petronelli. The court found that 'Turner '495' was a combination patent comprising elements already present in prior art and that its elements performed the same functions, thus failing the test for non-obviousness. Consequently, the court granted the defendant's motion for summary judgment, declaring the patent invalid.

Patent LawChild-Resistant ClosureObviousnessSummary Judgment35 U.S.C. § 103Combination PatentPrior ArtPatent InvalidityFederal Rules of Civil Procedure Rule 56Clutching Mechanism
References
24
Case No. 2016 NY Slip Op 05666 [143 AD3d 43]
Regular Panel Decision
Jul 28, 2016

Jerdonek v. 41 West 72 LLC

Plaintiff Orfeusz M. Jerdonek was injured after falling from a scaffold while working in a boiler room at 41 West 72nd Street. The Appellate Division, First Department, affirmed summary judgment on Labor Law § 240 (1) liability against Bar Construction Corp. The court modified the lower court's order, granting summary judgment to defendants 41 West 72 LLC and Property Markets Group, Inc., dismissing the Labor Law claims against them. The decision clarifies that the Hermitage Condominium's Board of Managers is the proper 'owner' for liability purposes concerning common elements, not the condominium sponsor or individual unit owners, due to the board's exclusive control over these elements. The court also granted plaintiff summary judgment on Labor Law § 240 (1) liability against the Hermitage Board.

Condominium LawLabor Law § 240(1)Summary JudgmentOwner LiabilityCommon ElementsBoard of ManagersScaffold AccidentReal Property LawAppellate DivisionFirst Department
References
22
Case No. MISSING
Regular Panel Decision

People v. Romano

The defendant was charged with attempted criminal contempt and aggravated harassment, arising from an alleged violation of a Family Court order of protection issued in a domestic dispute. The defendant moved to dismiss the contempt charge, arguing that the accusatory instrument failed to allege that the case did not involve a labor dispute, which a prior Third Department ruling considered an essential element of the crime under Penal Law § 215.50 (3). Despite the court's disagreement with this interpretation, it felt bound by precedent and found the accusatory instrument facially insufficient for lacking this element. However, instead of an outright dismissal, the court stayed its decision for 15 days to allow the District Attorney to amend the accusatory instrument or file a superseding information, thereby conditionally denying the motion to dismiss. This decision underscores a debate on statutory interpretation, legislative intent regarding the labor dispute exception, and the precedential value of appellate rulings.

Criminal ContemptAggravated HarassmentOrder of ProtectionFamily CourtLabor Dispute ExceptionPenal Law § 215.50Accusatory InstrumentMotion to DismissElements of a CrimeStatutory Interpretation
References
20
Case No. ADJ1177048
En Banc
Sep 03, 2009

WANDA OGILVIE vs. CITY AND COUNTY OF SAN FRANCISCO

This en banc decision clarifies that a permanent disability rating established by the Schedule is rebuttable, the burden of which rests with the disputing party. It affirms that a primary method of rebuttal is to challenge a component element, such as the Diminished Future Earning Capacity (DFEC) adjustment factor, by providing an individualized factor consistent with statutory requirements.

Diminished Future Earning CapacityDFEC2005 ScheduleRebuttablePrima Facie EvidencePermanent Disability RatingLabor Code section 4660RAND dataIndividualized Adjustment FactorWhole Person Impairment
References
51
Case No. ADJ11237829
Regular
Apr 22, 2019

JOE HOWARD vs. SUNCHEMICAL CORPORATION, NATIONAL UNION FIRE INSURANCE Administered by BROADSPIRE

The Workers' Compensation Appeals Board denied the applicant's petition for reconsideration, adopting the workers' compensation judge's (WCJ) report. While the Board clarified that equitable estoppel does not require an element of specific "intent" to deceive, agreeing with *Honeywell* that negligence can suffice, the applicant failed to establish detrimental reliance. Therefore, the petition was denied.

WCABSun Chemical CorporationNational Union Fire InsuranceBroadspirePetition for ReconsiderationWorkers' Compensation Appeals BoardAdministrative Law JudgeEquitable EstoppelHoneywell v. Workers' Comp. Appeals Bd.City of Long Beach v. Mansell
References
6
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