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

Case No. ADJ12788878
Regular
Dec 10, 2020

MARIO LUPERCIO PEREZ vs. ARMANDO CHAN dba CHAN DRAINAGE, MARKEL INSURANCE CO.

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration because it was filed as a removal petition challenging interlocutory issues. Although the WCJ's decision contained a final threshold finding of injury AOE/COE, the defendant only disputed the specialty of a QME and the timeliness of an objection, which are interlocutory. The Board found no significant prejudice or irreparable harm to justify removal, and that reconsideration would be an adequate remedy later if a final adverse decision issues.

Workers' Compensation Appeals BoardPetition for ReconsiderationThreshold IssueInterlocutory IssueInjury AOE/COEQualified Medical Evaluator (QME)Treating Physician ReportRemoval StandardSignificant PrejudiceIrreparable Harm
References
4
Case No. MISSING
Regular Panel Decision
Dec 31, 1999

Concerned Citizens of Valley Stream, Inc. v. Bond

The petitioners appealed a Supreme Court judgment that denied their petition to review a determination by the Zoning Board of Appeals of the Incorporated Village of Valley Stream. The Board had conditionally granted Nathan Serota's application for site plan approval. Petitioners contended that this decision violated the State Environmental Quality Review Act (SEQRA). The court affirmed the judgment, concluding that the Board had complied with SEQRA's substantive and procedural requirements by identifying environmental concerns, taking a "hard look" at them, and providing a "reasoned elaboration" for its determination, specifically addressing issues like flooding, drainage, and increased traffic.

CPLR Article 78SEQRASite Plan ApprovalZoning Board of AppealsEnvironmental ReviewNassau CountyJudicial ReviewArbitrary and CapriciousAbuse of DiscretionEnvironmental Impact Statement
References
6
Case No. MISSING
Regular Panel Decision

Town of Addison v. Meeks

The Town of Addison (plaintiff) initiated an action against a property owner (defendant) to secure a permanent injunction preventing interference with the public's use and the Town's maintenance of Miller Road. The Town also sought a declaration that Miller Road had become a Town highway under Highway Law § 189. The defendant appealed an order granting a preliminary injunction and the declaration. The appellate court unanimously affirmed the lower court's decision, citing extensive evidence of consistent public use of Miller Road for over ten years by various individuals and entities. Furthermore, the court found that the Town had successfully demonstrated its dominion over the road through longstanding and unchallenged maintenance efforts, including grading, plowing, and drainage improvements.

Highway LawPublic UseTown HighwayProperty RightsInjunctionRoad MaintenanceAppellate DecisionSteuben CountyReal Property
References
7
Case No. MISSING
Regular Panel Decision

Serdarevic v. Town of Goshen

This case concerns a proceeding under EDPL 207 and CPLR article 78 to review a determination by the Town Board of the Town of Goshen. The Town Board had issued a negative declaration under the State Environmental Quality Review Act (SEQRA) for a proposed roadway drainage project involving land condemnation. The petitioners challenged this declaration, arguing the Town failed to adequately assess environmental impacts. The court found that the Town did not take a "hard look" at the potential negative impacts on the petitioners' property and the Town reservoir, nor did it provide reasoned elaboration for its determination. Consequently, the court annulled the Town's negative declaration and remitted the matter to the Town Board for the preparation and circulation of a draft environmental impact statement.

Environmental ReviewSEQRANegative DeclarationCondemnationEminent DomainRoadway Drainage ProjectPublic HearingAnnulmentRemittalEnvironmental Impact Statement
References
7
Case No. MISSING
Regular Panel Decision
Dec 21, 2012

Gilberti v. Town of Spafford

This case involves an appeal from an order of the Supreme Court, Onondaga County, concerning a negligence action initiated by a plaintiff against a municipality, hereafter referred to as the Town. The plaintiff alleged the Town was negligent in the design, installation, construction, and maintenance of a storm water system near their house. The Town subsequently filed a third-party action against Spectra Environmental Group, Inc., claiming Spectra was responsible for the plaintiff's private drainage system. The Supreme Court partially denied the Town's motion for summary judgment but granted Spectra's motion. The appellate court modified the order, denying Spectra's motion and reinstating the third-party complaint against it, while affirming the order as modified regarding the Town's alleged negligent maintenance claims.

NegligenceMunicipal ImmunityStorm Water SystemSummary JudgmentAppellate ReviewProprietary FunctionGovernmental FunctionSpecial DutyDrainage SystemsPrior Notice
References
26
Case No. MISSING
Regular Panel Decision

Fisko v. U.S. General Services Administration

This case concerns a motion to dismiss filed by the United States of America against plaintiffs Barbara Fisko and Matthew Cardinale, who sought damages for personal injuries Fisko sustained due to a defective sidewalk and drainage cover at the World Trade Center Plaza. The plaintiffs alleged negligence by the government under the Federal Tort Claims Act (FTCA). The court granted the government's motion, ruling that the maintenance of the premises was delegated to Eastco Building Services, Inc., an independent contractor. Consequently, the FTCA's independent contractor exception precluded holding the government liable. Furthermore, the court found that claims of negligent supervision or selection of contractors were barred by the FTCA's discretionary function exception, leading to a dismissal of the complaint for lack of subject matter jurisdiction.

Federal Tort Claims ActIndependent Contractor ExceptionDiscretionary Function ExceptionSovereign ImmunityPersonal InjuryNegligencePremises LiabilityWorld Trade CenterSidewalk DefectDrainage Cover
References
25
Case No. MISSING
Regular Panel Decision

Riegert Apartments Corp. v. Planning Board of Clarkstown

The petitioner initiated a CPLR article 78 proceeding to annul the determination of the Planning Board of the Town of Clarkstown. The board required the petitioner to pay money in lieu of land as a condition for obtaining site plan approval to erect an apartment complex. Petitioner argued that the condition was arbitrary and illegal, contending that former owners had already conveyed land for flood control, which should satisfy the requirement. The court rejected the petitioner's arguments, finding that the previous land conveyance was for drainage and flood control, not for park or recreational purposes as required by Town Law § 277(1). The court also affirmed that the planning board had the authority under Town Law § 274-a to impose such a condition for site plan approvals. Consequently, the court denied the application in its entirety and dismissed the petition.

ZoningSite Plan ApprovalMoney in Lieu of LandTown LawCPLR Article 78Planning BoardLand UseRecreational LandFlood ControlRestrictive Covenants
References
2
Case No. 2017 NY Slip Op 05993
Regular Panel Decision
Aug 02, 2017

Trulio v. Village of Ossining

The plaintiff, John A. Trulio, Jr., initiated an action against the Village of Ossining for damages caused by periodic flooding on his property, attributing it to deficiencies in the Village's water drainage system and failure to remove obstructions. The Supreme Court initially denied the Village's motion for summary judgment regarding negligent maintenance and nuisance claims but granted it for trespass and inverse condemnation. On appeal, the Appellate Division modified the Supreme Court's order. It granted the Village's motion to dismiss the nuisance claim, deeming it duplicative of the negligent maintenance cause of action. The appellate court affirmed the denial of summary judgment for the negligent maintenance claim, finding the Village had not satisfied its burden to eliminate factual issues regarding maintenance, and also affirmed the dismissal of the trespass and inverse condemnation claims.

Negligent MaintenanceNuisanceTrespassInverse CondemnationSummary JudgmentProperty FloodingStorm Drainage SystemMunicipal LiabilityGovernmental ImmunityMinisterial Duty
References
15
Case No. MISSING
Regular Panel Decision

Burgher v. AF III Properties, LLC

Plaintiffs, who operate an automotive repair shop adjacent to defendant's shopping center, commenced an action alleging that defendant's property improvements (repaving a driveway and repairing a roof) diverted surface water onto their property, causing damage and interfering with their right-of-way. They also claimed trespass. Plaintiffs sought money damages, an alteration of defendant's drainage system, and a declaration of a perpetual prescriptive easement. The Supreme Court granted a prescriptive easement but otherwise denied summary judgment on the water diversion and trespass claims due to unresolved factual issues. The appellate court affirmed the Supreme Court's decision, finding that questions of fact existed regarding whether artificial means were used to divert water and whether defendant directed workers to trespass on plaintiffs' property.

Property disputeRight-of-wayPrescriptive easementSurface water diversionTrespassSummary judgmentAppellate reviewReal propertyLand useDrainage
References
6
Case No. MISSING
Regular Panel Decision

Kaleta v. New York State Electric & Gas Corp.

Plaintiff, a Verizon field technician, was injured after falling into an overgrown drainage ditch while working on utility poles. He commenced a personal injury action against Masterpiece Builders, LLC, New York State Electric & Gas Corporation (NYSEG), and Robert and Patricia Riley. The Supreme Court initially granted summary judgment to Masterpiece and partially to NYSEG, while denying the plaintiff's cross-motion under Labor Law § 240 (1). On appeal, the order was modified to grant NYSEG's motion in its entirety, dismissing the amended complaint against it, and the modified order was affirmed. The appellate court found Labor Law § 240 (1) inapplicable as the fall was not an elevation-related risk, and dismissed Labor Law § 241 (6) claims against Masterpiece due to lack of control and against NYSEG due to lack of proximate causation.

Personal InjurySummary JudgmentLabor LawWorkplace AccidentUtility PoleDrainage DitchConstruction SafetyAppellate DivisionNegligencePremises Liability
References
12
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