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

Case No. 2024 NY Slip Op 02032 [228 AD3d 20]
Regular Panel Decision
Apr 17, 2024

Air-Sea Packing Group, Inc. v. Applied Underwriters, Inc.

The Appellate Division, Second Department, affirmed an order denying dismissal of a lawsuit filed by Air-Sea Packing Group, Inc. against Applied Underwriters, Inc. and its affiliates. The plaintiff alleged that the defendants marketed and sold an unlawful workers' compensation insurance program, EquityComp, in violation of New York Insurance Law. The defendants attempted to enforce a forum selection clause mandating litigation in Nebraska, but the court found this clause unenforceable. This decision was based on public policy, as the program violated New York law, and because Nebraska courts had previously deemed New York the more appropriate forum for such disputes. The ruling allows the plaintiff to pursue claims for declaratory relief, equitable rescission, common-law fraud, and violation of General Business Law § 349 in New York.

Workers' Compensation InsuranceForum Selection ClausePublic PolicyInsurance Law ViolationsEquitable RescissionCommon-Law FraudDeceptive PracticesGeneral Business Law § 349Unlawful Reinsurance AgreementRegulatory Oversight
References
52
Case No. MISSING
Regular Panel Decision

DAR & Associates, Inc. v. Uniforce Services, Inc.

Plaintiffs, consisting of DAR & Associates, Inc., its principals, and D.A.R. Temps, Inc., initiated a lawsuit against Uniforee Services, Inc. The core of the action sought a declaratory judgment that restrictive covenants and a liquidated damages provision in their contracts were unenforceable under New York law, alongside a breach of contract claim. In addressing cross-motions for partial summary judgment, the court found Uniforee possessed legitimate business interests warranting the protection of the restrictive covenants, deeming them reasonable in duration and geographic scope. Furthermore, the court upheld the enforceability of the liquidated damages clause, concluding that actual damages were difficult to ascertain at the time of contract and the agreed-upon sum was reasonable. Consequently, the plaintiffs' motion for partial summary judgment was denied, and the defendant's cross-motion was granted, effectively validating the contractual provisions at issue.

Restrictive CovenantsNon-compete ClauseNon-solicitation ClauseLiquidated DamagesBreach of ContractDeclaratory JudgmentSummary JudgmentFranchise AgreementLicensing AgreementUnfair Competition
References
60
Case No. Docket # 7
Regular Panel Decision

Empire Enterprises JKB, Inc. v. Union City Contractors, Inc.

This case involves a breach of contract claim by Empire Enterprises JKB, Inc. against Union City Contractors, Inc. for unpaid debris removal services, and a Miller Act claim against Union City's sureties, Nova Casualty Company and Nova American Groups, Inc. After a bench trial in January 2008, Union City filed for bankruptcy, leading to an automatic stay on claims against them. The court, however, proceeded with Empire's Miller Act claim against Nova. The primary dispute concerned the quantity of debris removed, with Empire claiming 11,470 cubic yards. The court found Empire's evidence credible and rejected Nova's fraud defense, ultimately granting judgment in favor of Empire against Nova for $84,653.63, plus prejudgment interest.

Miller Act claimPayment bondBreach of contractSurety liabilityFederal public works projectDebris removalCubic yardage disputePrejudgment interestAttorney's fees deniedFraud affirmative defense
References
29
Case No. MISSING
Regular Panel Decision

Volmar Distributors, Inc. v. New York Post Co., Inc.

Plaintiffs Volmar Distributors, Inc., Interboro Distributors, Inc. d/b/a Media Masters Distributors, and REZ Associates sued multiple defendants including The New York Post Co., Inc., Maxwell Newspapers, Inc., El Diario Associates, Pelham News Co., Inc., American Periodical Distributors, Inc., Vincent Orlando, The Newspaper and Mail Deliverer’s Union of New York and Vicinity (NMDU), and Douglas La Chance. The action alleges violations of the Sherman Antitrust Act, RICO, the New York State Donnelly Act, and state common laws, stemming from the termination of plaintiffs as newspaper distributors. The plaintiffs claim a conspiracy between Orlando (owner of Pelham and American) and La Chance (former NMDU president) to use La Chance's union influence to transfer distribution routes to Orlando's companies. Two related criminal indictments are pending: People v. La Chance and People v. NMDU. The court considered defendants' motion to stay civil discovery pending the resolution of these criminal matters. The court granted a complete stay of discovery for all defendants until the criminal proceedings against La Chance and Orlando are resolved, citing the protection of Fifth Amendment rights and the promotion of judicial efficiency by avoiding duplicative discovery.

AntitrustRICORacketeeringConspiracyCivil DiscoveryCriminal ProceedingsStay of ProceedingsFifth AmendmentSelf-IncriminationLabor Union
References
19
Case No. 2021 NY Slip Op 06975
Regular Panel Decision
Dec 14, 2021

WDF Inc. v. Vamco Sheet Metals, Inc.

The Appellate Division, First Department, affirmed an order from the Supreme Court, New York County, which granted plaintiff WDF Inc.'s motion for partial summary judgment on its breach of contract claim against Vamco Sheet Metals, Inc. WDF Inc. successfully demonstrated that Vamco Sheet Metals, Inc. breached their subcontract by failing to provide sufficient workers for the project. The court found Vamco Sheet Metals, Inc.'s arguments unavailing. Fidelity and Deposit Company Maryland was involved as a third-party defendant in the proceedings.

Breach of ContractSummary JudgmentSubcontract DisputeAppellate ReviewFailure to PerformJudicial AffirmationContract LawThird-Party ActionConstruction LawNew York Law
References
4
Case No. 2017 NY Slip Op 06253
Regular Panel Decision
Aug 23, 2017

Ecoline, Inc. v. W.H. Peepels Co., Inc.

In a breach of contract action, the plaintiff, Ecoline, Inc., an insulation subcontractor, sought damages from defendants W.H. Peepels Company, Inc., for unpaid work on a commercial building renovation. The Supreme Court, Queens County, granted Ecoline, Inc.'s motion for summary judgment in the principal sum of $53,442.57 but limited statutory interest from May 11, 2006. On appeal, the Appellate Division, Second Department, affirmed the summary judgment in favor of Ecoline, Inc. However, the appellate court reversed the lower court's decision regarding statutory interest, determining that it should be awarded from June 12, 2001, as this was the earliest ascertainable date the cause of action existed. The Court concluded that Ecoline, Inc. met its prima facie burden for breach of contract, and the defendants failed to raise a triable issue of fact.

Breach of ContractSummary JudgmentStatutory InterestAppellate ReviewSubcontractorConstructionDamagesInvoice DisputeNew York Appellate DivisionCivil Procedure
References
8
Case No. MISSING
Regular Panel Decision

Brian Fay Construction, Inc. v. Morstan General Agency, Inc.

Brian Fay Construction, Inc. (plaintiff) contracted with J.E Spano and Company, agreeing to indemnify Spano. The plaintiff then instructed its insurance agents, DFW Associates, Inc. and Douglass Fenning (together DFW), and later Morstan General Agency, Inc., to add Spano as an additional insured to its general liability policy with Burlington Insurance Company. An employee of Brian Fay Construction was injured, leading to a claim against Spano and a third-party action against the plaintiff. Burlington denied coverage, citing an employee exclusion and stating there was no evidence Spano was an additional insured. The plaintiff sued the agents for failing to properly procure insurance, seeking a declaration that they were obligated to defend and indemnify. The Supreme Court granted the plaintiff's motion for summary judgment, but the appellate court reversed, finding that the plaintiff failed to prove that Burlington would have been obligated to cover the claim even if Spano had been properly named as an additional insured.

Insurance Broker LiabilityAdditional InsuredSummary JudgmentDuty to Procure InsuranceIndemnificationGeneral Liability PolicyEmployee Liability ExclusionAppellate ReviewConstruction ContractInsurance Coverage Dispute
References
6
Case No. MISSING
Regular Panel Decision

Wolfe v. KLR Mechanical, Inc.

Plaintiff Malcolm Wolfe, a millwright employed by DLX Inc., was injured when he slipped on a threaded rod while working at defendant Irving Tissue, Inc.'s paper mill. Wolfe and his wife filed an action alleging negligence and violations of Labor Law §§ 200 and 241 (6) against Irving Tissue, Inc., Northeast Riggers & Erectors, Inc. (general contractor), and KLR Mechanical, Inc. (subcontractor). The Supreme Court granted summary judgment to all defendants, dismissing the complaint. On appeal, the court affirmed the dismissal of the Labor Law § 241 (6) claims against all defendants and the other claims against Northeast Riggers & Erectors, Inc. and KLR Mechanical, Inc. However, the court reversed the summary judgment granted to Irving Tissue, Inc. concerning common-law negligence and Labor Law § 200, finding that Irving retained control of the stairway and failed to establish a lack of constructive notice of the dangerous condition. The case was remitted for further proceedings against Irving Tissue, Inc.

Labor LawSummary JudgmentPremises LiabilityConstruction AccidentRoutine MaintenanceIndustrial CodeAppellate DivisionSpecial EmployeeConstructive NoticeDangerous Condition
References
21
Case No. MISSING
Regular Panel Decision

Rogers v. Westfalia Associated Technologies, Inc.

Ronald Rogers, while performing maintenance, fell nine feet from a stationary conveyor system at Agway Feed Mill. He and his wife, Lisa Rogers, sued Westfalia Associated Technologies, Inc. and Portee, Inc., alleging negligent design and manufacturing, failure to warn, breach of warranty, and strict products liability. Westfalia, Portee, Probec, Inc., and Mill Technology, Inc. filed motions for summary judgment, arguing they owed no duty to Rogers and their products were not defective. The court found that Agway, the employer and purchaser, was in the best position to assess risks and declined optional safety equipment. Furthermore, Rogers was aware of the dangers, and warnings were posted. Consequently, the court granted all motions for summary judgment, dismissing the complaint, counterclaims, and cross-claims.

Product LiabilityNegligenceStrict LiabilityDesign DefectFailure to WarnSummary JudgmentConveyor SystemIndustrial AccidentAssumption of RiskOpen and Obvious Danger
References
17
Case No. MISSING
Regular Panel Decision

Gjertsen v. Mawson & Mawson, Inc.

This case involves an appeal concerning an action to recover damages for personal injuries sustained by a dockworker at a construction site. The plaintiff's employer, George W. Rogers, Inc., had paid workers' compensation. The appellants, Ingram & Greene, Inc. (a subcontractor) and H. Sand & Co., Inc. (the general contractor), sought indemnification from the employer, George W. Rogers, Inc., for the plaintiff's injuries. The initial order from the Supreme Court, Kings County, had dismissed their cross-claims and denied H. Sand & Co., Inc.'s motion to amend its answer. The appellate court reversed this order, finding that federal maritime law allows for indemnification based on either an express agreement or an implied warranty of workmanlike performance, and that Labor Law sections 240(1) and 241(6) impose liabilities equivalent to the doctrine of unseaworthiness.

Personal InjuryIndemnificationCross-claimsLongshoremen's and Harbor Workers' Compensation ActFederal Maritime LawState Court JurisdictionImplied Warranty of Workmanlike PerformanceLabor Law ViolationsStrict LiabilityThird-Party Beneficiary
References
13
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