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

Case No. 2021 NY Slip Op 01051 [191 AD3d 886]
Regular Panel Decision
Feb 17, 2021

Matter of Peng v. Poole

The petitioner, Mexia Peng, initiated a CPLR article 78 proceeding to review a determination made by the New York State Office of Children and Family Services (OCFS). OCFS had previously denied her request to change an "indicated" report of child abuse and maltreatment to "unfounded." The underlying report stemmed from an allegation that Peng struck a five-year-old child in the face with a ruler as punishment. The Appellate Division, Second Department, confirmed OCFS's determination, stating it was supported by substantial evidence in the record. The court denied the petition and dismissed the proceeding on the merits, also noting that hearsay evidence is permissible and can be sufficiently probative in administrative hearings.

Child AbuseChild MaltreatmentCPLR Article 78Administrative HearingSubstantial EvidenceHearsay AdmissibilityOffice of Children and Family ServicesReport AmendmentAppellate DivisionJudicial Review
References
4
Case No. LAO 854183
Regular
Nov 26, 2007

ELIAS SABA vs. PENG CHENG ALUMINUM, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) granted the defendant's petition for reconsideration of a prior decision. This reconsideration is necessary to allow the Board further time to thoroughly study the factual and legal issues. The WCAB will issue a decision after this further review, and all future communications regarding this case should be directed to the Reconsideration Unit.

Petition for ReconsiderationWorkers' Compensation Appeals BoardElias SabaPeng Cheng AluminumState Compensation Insurance FundLAO 854183August 30 2007Statutory time constraintsFactual and legal issuesJust and reasoned decision
References
0
Case No. MISSING
Regular Panel Decision

National Westminster Bank U.S.A. v. Cheng

National Westminster Bank USA (NatWest USA) initiated an action against Calvin W.S. Cheng and corporations under his control, seeking to recover approximately $1.9 million from prior default judgments against Soto Grande Shipping Corporation, S.A. and Y.C. Cheng, Calvin Cheng's father. NatWest USA had extended a loan to Y.C. Cheng and Soto Grande for a ship purchase, which subsequently went into default. The bank alleged a scheme involving Y.C. Cheng transferring profitable assets to Calvin Cheng's corporations to evade creditors, pursuing satisfaction of judgments through theories of fraudulent conveyance and piercing the corporate veil. However, the court found no subject matter jurisdiction, noting a lack of complete diversity among the parties as both petitioner and respondent corporations shared New York as their principal place of business. Furthermore, the court rejected ancillary jurisdiction, asserting that the claims were state law-based, involved non-diverse parties, and were too far removed from the original breach of contract action. Consequently, the respondents' motion to dismiss for lack of subject matter jurisdiction was granted.

JurisdictionDiversity JurisdictionAncillary JurisdictionFederal Rules of Civil ProcedureFraudulent ConveyancePiercing the Corporate VeilJudgment EnforcementSubject Matter JurisdictionCorporate LawLoan Default
References
12
Case No. MISSING
Regular Panel Decision

Cheng v. New York Telephone Co.

Plaintiff Victor Cheng sued New York Telephone Company (NYT) and Communications Workers of America, Local 1101 (CWA) for racial discrimination under 42 U.S.C. § 1981, NYHRL, and NYC Administrative Code. Cheng, an Asian male service technician, was fired by NYT for allegedly violating its competitive activities policy by working for rival companies. He claimed this was a pretext for racial discrimination and that the CWA failed to vigorously pursue his grievance due to his race. The defendants moved for summary judgment. The Court found NYT presented ample non-discriminatory reasons for Cheng's discharge and that Cheng failed to provide sufficient evidence of pretext or discriminatory animus from either defendant, dismissing his allegations as unsupported hearsay and conclusory. The Court also noted CWA's claim for breach of duty of fair representation was time-barred. Therefore, the Court granted both defendants' motions for summary judgment.

Racial DiscriminationEmployment DiscriminationSummary Judgment42 U.S.C. § 1981New York State Human Rights LawNYC Administrative CodeDuty of Fair RepresentationCollective Bargaining AgreementCompetitive Activity PolicyWrongful Termination
References
11
Case No. ADJ6906050 ADJ6906051
Regular
Jan 07, 2020

IRMA OCHOA vs. ALUMINUM PRECISION PRODUCTS, XL INSURANCE; INDEPENDENT FORGE, REDWOOD FIRE & CASUALTY INSURANCE COMPANY, c/o BERKSHIRE HATHAWAY HOMESTATE COMPANIES

This case affirmed a previous award finding Aluminum Precision Products liable for the applicant's workers' compensation claim. Although symptoms manifested at both employers, Labor Code section 5500.5 dictates liability falls solely on the employer with the last year of injurious exposure. The Appeals Board adopted the judge's report, incorporating its reasoning to support this conclusion. Therefore, the prior award against Aluminum Precision Products was upheld.

Labor Code section 5500.5last year of injurious exposureemployer liabilityworkers' compensationReconsiderationOpinion and DecisionJoint Findings Award and OrderAFFIRMEDWCJ reportfactual and legal issues
References
0
Case No. MISSING
Regular Panel Decision

BFI Group Divino Corp. v. JSC Russian Aluminum

The current case is a motion for relief from a judgment filed by BFI Group Divino Corp. against JSC Russian Aluminum and others. The initial judgment, entered on May 30, 2007, dismissed BFI's claims due to forum non conveniens, deeming Nigeria an adequate alternative forum. BFI argues that newly discovered evidence, including a kidnaping incident of RUSAL employees and increased violence in Nigeria, makes Nigeria unsafe. However, the court, presided over by Senior District Judge William C. Conner of the Southern District of New York, denies the motion. The judge finds that the evidence is not truly "newly discovered" as it largely post-dates the original judgment, was not justifiably unknown, and would not have altered the previous decision. The court emphasizes that the alleged kidnaping occurred far from the prospective trial venue in Abuja and that BFI continues its own litigation and business pursuits in Nigeria, making its safety concerns appear inconsistent and the new evidence cumulative of prior arguments.

Forum non conveniensMotion for relief from judgmentFederal Rules of Civil Procedure 60(b)Newly discovered evidenceAdequate alternative forumNigeria security concernsInternational business disputeKidnaping incidentWitness unavailabilityPrivate interest factors
References
14
Case No. ADJ3126343
Regular
Feb 19, 2009

HARRY BURTOVOY vs. RELIANCE STEEL AND ALUMINUM CO., ACE AMERICAN, ADMINISTERED BY ESIS

The Workers' Compensation Appeals Board (WCAB) denied Harry Burtovoy's petition for removal in his case against Reliance Steel and Aluminum Co. and its administrator ACE AMERICAN. The Board found that removal is an extraordinary remedy and Burtovoy failed to demonstrate substantial prejudice or irreparable injury if removal was not granted. Therefore, the petition for removal was denied based on the WCJ's report.

Petition for RemovalWorkers' Compensation Appeals BoardDenial of RemovalSubstantial PrejudiceIrreparable InjuryExtraordinary RemedyWCJ ReportCase ADJ3126343Reliance Steel and Aluminum Co.ACE AMERICAN
References
1
Case No. 2004 NY Slip Op 24299 [4 Misc 3d 974]
Regular Panel Decision
Aug 19, 2004

Themed Rests., Inc. v. Zagat Survey, LLC

Themed Restaurants, Inc., operating as Lucky Cheng's, sued Zagat Survey, LLC for libel, trade libel, and negligence, challenging a negative review in the 2004 NYC Restaurant Survey. The plaintiff alleged a 35% business drop post-publication, attributing it to the survey's low food rating and critical anonymous consumer comments about the restaurant's theme and offerings. The court considered whether survey-based reviews, utilizing anonymous opinions and numerical ratings, constituted protected opinion or actionable defamation. Ultimately, the court ruled that the review's statements and ratings were subjective opinions, not false statements of fact, and therefore protected by free speech principles. Additionally, the plaintiff failed to meet the pleading specificity requirement for constitutional malice. Consequently, the motion to dismiss was granted.

DefamationLibelTrade LibelRestaurant ReviewFirst AmendmentFreedom of SpeechConstitutional MaliceActual MalicePleading SpecificityConsumer Surveys
References
32
Case No. MISSING
Regular Panel Decision
Jan 30, 2012

Andrucki v. Aluminum Co.

This case involves a judgment reversing an award of damages to plaintiffs against the Port Authority of New York and New Jersey. The plaintiffs' decedent, a sheet metal worker, was exposed to asbestos at the World Trade Center and later diagnosed with malignant mesothelioma. The original complaint was served prematurely, leading to a lack of subject matter jurisdiction over the Port Authority. The court emphasized strict adherence to the notice of claim requirements under Unconsolidated Laws § 7107, contrasting New York's strict construction with New Jersey's allowance for substantial compliance. Furthermore, the court ruled that the initial notice of claim, filed for personal injury, did not cover the subsequent wrongful death claim, necessitating a new notice. However, plaintiffs were granted leave to move for a new notice of claim and suit for wrongful death and survivorship actions.

Subject Matter JurisdictionNotice of ClaimPort Authority of New York and New JerseyAsbestos ExposureMalignant MesotheliomaWrongful DeathStatute of LimitationsStrict ConstructionSubstantial ComplianceNew York Law
References
9
Case No. MISSING
Regular Panel Decision

Francis v. Aluminum Co. of America

A journeyman ironworker, referred to as 'Plaintiff,' sustained serious injuries after slipping and falling from a load of snow-covered structural steel on a flatbed truck while unloading it. Plaintiff alleged violations of Labor Law §§ 200, 240 (1), and 241 (6) against the general contractor and owner. The Supreme Court dismissed the complaint, finding the fall not to be from an elevated worksite under Labor Law § 240 (1) and cited regulations for Labor Law § 241 (6) inapplicable or non-specific. The Appellate Court affirmed, holding that the injuries were not the result of an elevation-related risk encompassed by Labor Law § 240 (1) as the fall was to the same level. The court further concluded that 12 NYCRR 23-1.7 (d) was inapplicable because the load of steel beams did not constitute a floor, passageway, or elevated area.

Workers' CompensationConstruction AccidentFall from HeightLabor Law 240(1)Labor Law 241(6)Summary JudgmentAppellate ReviewNew York Labor LawWorksite SafetyElevation-Related Risk
References
14
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