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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 03820 [195 AD3d 776]
Regular Panel Decision
Jun 16, 2021

21st Century Pharmacy v. American Intl. Group

21st Century Pharmacy appealed a Supreme Court order that dismissed its declaratory judgment action against American International Group (AIG) and the New York Workers' Compensation Board (WCB). The pharmacy sought a declaration that it could pursue payment for prescription bills in a plenary court proceeding, rather than solely through the WCB, and also sought a monetary judgment. The Supreme Court dismissed the complaint, asserting the WCB had exclusive subject matter jurisdiction. The Appellate Division, Second Department, reversed this decision, clarifying that while the WCB holds primary jurisdiction over Workers' Compensation Law applicability, it does not possess exclusive jurisdiction in a declaratory judgment action. The case was remitted to the Supreme Court for a determination on the merits of AIG's motion to dismiss.

Declaratory JudgmentSubject Matter JurisdictionWorkers' Compensation LawPrimary JurisdictionExclusive JurisdictionPrescription BillsAppellate ProcedureRemittalPharmacy RightsCourt Jurisdiction
References
8
Case No. MISSING
Regular Panel Decision

Innoviant Pharmacy, Inc. v. Morganstern

Innoviant Pharmacy, Inc. sued its former sales executive, Max Morganstern, for unfair competition and breach of a non-compete agreement after he joined a competitor, Summit Pharmacy, Inc., and solicited Innoviant's customer referral sources. Innoviant sought a preliminary injunction to prevent Morganstern from contacting 114 key New York referral sources. The court found Innoviant unlikely to succeed on its breach of contract claim because the employment agreement was deemed unenforceable due to a later signed document. However, the court found Innoviant likely to succeed on its unfair competition claim, as Morganstern misappropriated a list of potential referral sources and business cards. Consequently, the court granted the preliminary injunction, restraining Morganstern from contacting the specified referral sources until February 24, 2006, conditioned on Innoviant posting a $100,000 security bond.

Preliminary InjunctionUnfair CompetitionBreach of ContractNon-compete ClauseTrade SecretsCustomer ListsConfidential InformationEmployment AgreementSales ExecutiveReferral Sources
References
50
Case No. MISSING
Regular Panel Decision

Rivera v. Ndola Pharmacy Corp.

Plaintiff Siew Lian Rivera brought an action alleging violations of the Fair Labor Standards Act (FLSA), New York Labor Law, Human Rights Law, Administrative Code, and common law claims against Ndola Pharmacy Corp. and several individuals. Defendants moved for partial summary judgment on the FLSA and Labor Law claims and to dismiss state law claims for lack of subject matter jurisdiction. The court denied partial summary judgment, finding Rivera's testimony sufficient for overtime claims despite credibility questions. Supplemental jurisdiction was retained for the sexual harassment claim against N. Patel due to its connection to wage allegations, but other state law claims were dismissed without prejudice for lacking a common nucleus of operative fact with the federal claim. Additionally, certain motions related to amending the answer regarding the plaintiff's standing due to bankruptcy were granted in part and denied in part.

FLSAOvertime CompensationWage ClaimsSexual HarassmentHostile Work EnvironmentSummary JudgmentSupplemental JurisdictionBankruptcy EstateCredibility of WitnessEmployment Law
References
46
Case No. MISSING
Regular Panel Decision

Lamarr-Arruz v. CVS Pharmacy, Inc.

This case involves claims of a hostile work environment and retaliation brought by Zaire Lamarr-Arruz and Mominna Ansoralli against CVS Pharmacy, Inc. Plaintiffs allege racial profiling of customers and a barrage of racial slurs by supervisors and managers, violating 42 U.S.C. §1981, NYSHRL, and NYCHRL. Lamarr-Arruz also filed a retaliation claim, alleging delayed return from medical leave and termination due to his complaints. CVS sought summary judgment, denying the allegations and arguing the lack of supervisory responsibility for some alleged harassers and the availability of their anti-harassment policy. The court denied CVS's motions for summary judgment, finding genuine disputes of material fact regarding the existence of a hostile work environment for Ansoralli, the imputation of hostile conduct to CVS, and Lamarr-Arruz's retaliation claim, including the pretextual nature of his termination reasons.

Hostile Work EnvironmentRacial DiscriminationRetaliationSummary JudgmentEmployment LawCivil Rights Act of 1991New York Human Rights LawNew York City Human Rights LawEmployer LiabilitySupervisory Liability
References
60
Case No. MISSING
Regular Panel Decision

Emspak v. Conroy

The defendants moved for a further bill of particulars regarding item 30 and requested the entire bill be verified by a union officer. The plaintiff's attorney acknowledged the omission for item 30 was an oversight and agreed to provide it. He argued his self-verification was proper under subdivision 3 of rule 99 of the Rules of Civil Practice, citing the plaintiff's absence from the county, and claimed defendants waived objection by not returning the bill within 24 hours. The court clarified that Rules 10 and 11 do not apply to verification. While an attorney can verify a bill of particulars under rule 117, the court ruled that merely stating the party is out of county is insufficient; the attorney must also detail the basis of their knowledge, especially given a prior order requiring an oath for inability to furnish particulars. The motion for a further bill was granted.

Bill of particularsVerificationAttorney verificationRules of Civil PracticeWaiverMotionCourt procedurePleadingSufficiency of verification
References
3
Case No. MISSING
Regular Panel Decision

Hojnowski v. Buffalo Bills, Inc.

David Hojnowski, a former equipment manager for the Buffalo Bills, sued his former employer alleging age discrimination under the Age Discrimination in Employment Act, New York State Human Rights Law, and violations of the Employee Retirement Income Security Act. The Buffalo Bills moved to dismiss the claims and compel arbitration, citing an arbitration clause in Hojnowski's employment contract. Hojnowski contended that the arbitration agreement was unenforceable due to the absence of arbitration rules and unconscionability. The court determined that the arbitration rules were sufficiently incorporated into the agreement and that the contract was not unconscionable. Consequently, the court granted the Bills' motion, compelling Hojnowski to arbitration and dismissing his complaint.

Arbitration AgreementEmployment LawAge DiscriminationERISANew York State Human Rights LawMotion to DismissContract EnforceabilityUnconscionability DefenseFederal Arbitration ActNFL Commissioner
References
25
Case No. ADJ8485371
Regular
Dec 01, 2014

MICHAEL (MIKE) STRATTON vs. SAN DIEGO CHARGERS, ZENITH NORTH AMERICA, BUFFALO BILLS

The Workers' Compensation Appeals Board reconsidered a prior decision regarding Michael Stratton's cumulative injury claim against the San Diego Chargers and Buffalo Bills. While the original judge found Stratton's claim against the Bills timely, the Board reversed this, determining it was barred by the statute of limitations. The Board found that neither employer breached a duty to notify Stratton of his workers' compensation rights at the time of his employment. Therefore, the statute of limitations was not tolled, and Stratton's claim against the Buffalo Bills is dismissed.

WCABStatute of LimitationsLabor Code Section 5405Date of InjuryTollingCumulative InjuryProfessional Football PlayerSan Diego ChargersBuffalo BillsZenith North America
References
17
Case No. MISSING
Regular Panel Decision
Apr 21, 2004

Zenteno v. Geils

The defendants appealed an order from the Supreme Court, Westchester County, which granted the plaintiff's motion to restore a personal injury action to the trial calendar and for leave to serve a supplemental bill of particulars. The Appellate Division affirmed the order, finding that the plaintiff demonstrated a meritorious cause of action and a reasonable excuse for delay, citing extensive medical evaluations and difficulties obtaining authorization from the Workers’ Compensation Board. The court also determined that the defendants were not prejudiced by the restoration. Furthermore, an alleged agreement to proceed to arbitration was deemed unenforceable due to non-compliance with CPLR 2104 "open court" requirements. Finally, the Supreme Court's decision to grant leave for a supplemental bill of particulars was upheld, as it pertained to continuing consequences of existing injuries rather than new ones, aligning with CPLR 3043 [b].

Personal InjuryTrial Calendar RestorationSupplemental Bill of ParticularsArbitration Agreement EnforcementCPLR 2104CPLR 3043Medical ExaminationsWorkers' Compensation IssuesAppellate ReviewProcedural Motion
References
20
Case No. MISSING
Regular Panel Decision
Oct 08, 2009

D'Elia v. City of New York

The plaintiff appealed an order from the Supreme Court, Queens County, concerning personal injuries sustained while working as a surveyor. The original order granted summary judgment to defendants on common-law negligence and Labor Law §§ 200 and 241(6) claims, and denied the plaintiff's cross-motion to amend his bill of particulars to include a violation of 12 NYCRR 23-1.23. The appellate court modified the order, granting the plaintiff's cross-motion for leave to amend his bill of particulars and denying summary judgment to defendants on the Labor Law § 241(6) claim. However, the court affirmed the dismissal of common-law negligence and Labor Law § 200 claims, finding defendants lacked supervisory authority over the plaintiff's work. The case involved an alleged fall on a steeply inclined slope made of loosely compacted dirt and rocks at a construction site.

Personal InjuryLabor LawSummary JudgmentBill of Particulars AmendmentConstruction Site AccidentWorkplace SafetyIndustrial Code ViolationNegligenceAppellate ReviewEarthen Slope Fall
References
13
Case No. LAO 806600
Regular
Mar 10, 2008

AUDELIA GARCIA vs. BRACKEN FERN MANOR, CALIFORNIA INDEMNITY INSURANCE COMPANY

The Workers' Compensation Appeals Board denied reconsideration of an order requiring defendant Bracken Fern Manor to pay $2,100 to Family Pharmacy for medical treatment. Defendant sought to invalidate a stipulation, arguing the pharmacy's bill was inflated, but the Board found no good cause to set aside the binding stipulation. The Board also noted the defendant's reliance on Code of Civil Procedure sections was misplaced in workers' compensation proceedings.

Workers' Compensation Appeals BoardLien ClaimantStipulated OrderReconsideration DeniedCompromise and ReleaseCode of Civil ProcedureLabor CodeGood CauseStipulationIndustrial Injuries
References
2
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