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Case No. 2025 NY Slip Op 00502 [234 AD3d 1215]
Regular Panel Decision
Jan 30, 2025

Matter of Ito (International Business Promotion, Inc.--Commissioner of Labor)

Eriko Ito filed for unemployment insurance benefits after her employment with NHK Cosmomedia America, Inc. was terminated. The Department of Labor initially determined that International Business Promotion, Inc. (IBP), a recruiting and marketing company that placed Ito with NHK, was her employer and liable for unemployment insurance contributions. Although an Administrative Law Judge later ruled NHK was the true employer, the Unemployment Insurance Appeal Board reversed this, finding IBP to be Ito's employer. IBP appealed the Board's decision. The Appellate Division, Third Department, affirmed the Board's ruling, concluding that IBP exercised sufficient control over Ito's work, including screening, hiring, setting pay rates, direct payment, and handling complaints, to establish an employment relationship.

Unemployment InsuranceEmployment RelationshipIndependent ContractorStaffing AgencyRecruiting BusinessControl TestAppellate ReviewUnemployment Insurance Appeal BoardLabor LawJudiciary Law
References
11
Case No. 13-09-00067-CV
Regular Panel Decision
Jul 18, 2013

CITY OF McALLEN, TEXAS v. Arnaldo Ramirez Jr., Raul Romero, Promotions of America, Inc., Nolana Entertainment, Inc.

The City of McAllen appealed a trial court judgment that found its denial of a conditional use permit for the Collage nightclub constituted an unconstitutional taking under the Texas Constitution. Appellees Arnaldo Ramirez Jr., Raul Romero, Promotions of America, Inc., and Nolana Entertainment, Inc., had sued after the permit denial led to the nightclub's closure and significant financial losses. The appellate court affirmed the lower court's decision, concluding that the City's actions demonstrated a severe economic impact and interfered with the appellees' reasonable investment-backed expectations, thus satisfying the criteria for a regulatory taking. The court also upheld the awards for lost investments, lost profits, and the loss of collateralized property (La Villa Real) and its associated rental income.

Regulatory TakingProperty RightsConditional Use PermitZoning OrdinanceTexas Constitution Article I Section 17Economic ImpactInvestment-Backed ExpectationsDue ProcessDamages AwardLost Profits
References
93
Case No. MISSING
Regular Panel Decision
Oct 03, 2002

Sterling Promotional Corp. v. General Accident Insurance Co. of New York

The plaintiff, Sterling Promotional Corporation, filed a declaratory judgment action against Travelers Property Casualty Company concerning insurance coverage for damaged teddy bears. The defendant filed a motion to dismiss the complaint and for attorneys' fees, alleging the plaintiff's president, Steven Linder, repeatedly and deliberately evaded discovery depositions over two years. The court found a 'very devious, continuous effort' by the plaintiff to avoid depositions, constituting bad faith and intransigence. Consequently, the court granted the defendant's motion to dismiss the complaint and awarded $2,550 in attorneys' fees, assessed jointly and severally against Sterling and its attorney, Golub. Additionally, the action against co-defendant SGS Testing was dismissed due to a lack of federal jurisdiction following Travelers' dismissal.

Discovery SanctionsMotion to DismissFederal Rules of Civil Procedure 37Federal Rules of Civil Procedure 41bAttorneys' FeesBad Faith ConductEvasion of DiscoveryDeposition MisconductLack of Federal JurisdictionDeclaratory Judgment
References
7
Case No. MISSING
Regular Panel Decision

Cardoza v. Healthfirst, Inc.

Plaintiff Paula Cardozo sued Health-first, Inc. under Title VII and New York Human Rights Laws, alleging gender discrimination for being denied a promotion and subsequently terminated. She claimed a less qualified man was promoted over her and that her termination was gender-based. Defendant Healthfirst moved for summary judgment, arguing legitimate non-discriminatory business reasons for its actions, including the promoted individual's strong performance and a shift in business emphasis leading to the plaintiff's position becoming less significant. The court, presided over by Judge Berman, granted the defendant's motion for summary judgment, finding that the plaintiff failed to establish a prima facie case for the failure to promote claim and did not provide sufficient evidence to demonstrate that the defendant's stated reasons were a pretext for discrimination regarding either the promotion or the termination. Consequently, the federal claims were dismissed, and the court declined supplemental jurisdiction over the state law claims.

Gender DiscriminationTitle VIISummary JudgmentEmployment LawFailure to PromoteWrongful TerminationNew York Human Rights LawPrima Facie CasePretextDisparate Treatment
References
44
Case No. MISSING
Regular Panel Decision

Guzman v. El Paso Natural Gas Co.

Luis Martinez Guzman, an attorney, sued his former employer, El Paso Natural Gas Co. (EPNG), alleging constructive discharge and discrimination based on race and national origin, including denial of promotions and harassment. EPNG filed a motion for summary judgment on Guzman's various claims, including failure-to-promote under 42 U.S.C. § 1981, breach of duty of good faith and fair dealing, intentional misconduct, violations of public policy, intentional infliction of emotional distress, and breach of contract (ERISA). The court granted summary judgment in part and denied in part. Claims regarding failure to promote to the Mojave board of directors, failure to promote to Vice President of Marketing, intentional infliction of emotional distress, and the ERISA claim were denied, allowing them to proceed. Summary judgment was granted for EPNG on the failure to promote to Executive Vice-President of Mojave, breach of good faith and fair dealing, intentional misconduct, and public policy claims.

DiscriminationRace DiscriminationNational Origin DiscriminationEmployment LawConstructive DischargeFailure to PromoteSummary JudgmentERISAEmotional DistressBreach of Contract
References
39
Case No. MISSING
Regular Panel Decision
Mar 22, 1977

Falcon v. General Telephone Co.

Mariano S. Falcon, a Mexican-American, filed a class-action lawsuit against General Telephone on April 3, 1975, alleging discrimination in hiring and promotion. The court found that Falcon himself was discriminated against in promotions but not in hiring. For the class, General Telephone discriminated in hiring but not in promotions. The relief granted includes awards for backpay, overtime pay, loss of job security, and six percent interest. The court denied monetary relief for shift differential pay, potential promotions, and "individual initiative" as too speculative. Damages were granted up to the end of "phase I" of the trial, and attorney fees were awarded to the plaintiffs.

Employment DiscriminationTitle VIIClass ActionRacial DiscriminationMexican-AmericanBackpayPromotionsHiring PracticesBurden of ProofAttorney Fees
References
3
Case No. MISSING
Regular Panel Decision

Dash v. Equitable Life Assur. Soc. of US

Kenneth Dash, a black employee, sued Equitable Life Assurance Society and Equicor-Equitable HCA Corp. for racial discrimination in employment under Title VII and 42 U.S.C. § 1981, alleging unfair job evaluations, denied promotion, and retaliatory discharge. Defendants moved for dismissal or summary judgment. The court, applying Patterson v. McLean Credit Union retroactively, dismissed claims of discriminatory job evaluations, discriminatory discharge, and retaliatory discharge under § 1981. However, the court denied the motion for summary judgment regarding the discriminatory denial of promotion claim, finding a question of fact as to whether the promotion to Team Leader constituted an opportunity for a "new and distinct" contractual relationship. The promotion claim will proceed to trial.

Racial DiscriminationEmployment DiscriminationTitle VIISection 1981Promotion DenialRetaliatory DischargeSummary JudgmentMotion to DismissPatterson v. McLean Credit UnionNew and Distinct Relation
References
36
Case No. MISSING
Regular Panel Decision

Gallagher v. City of New York

This appeal addresses whether the decision to prioritize a promotional list for firefighter candidates, composed of Emergency Medical Technicians (EMTs) and paramedics within the Fire Department, over an open competitive examination list was arbitrary and capricious or violated the New York State Constitution's Merit and Fitness Clause. The Fire Department and the Department of Citywide Administrative Services (DCAS) determined that EMS personnel had sufficient overlap in responsibilities with firefighters to warrant a promotional pathway. The Supreme Court initially sided with the petitioner, the Uniformed Firefighters Association, finding the preference arbitrary. However, the appellate court reversed, deferring to DCAS's expertise and finding their policy of exhausting promotional lists before open competitive lists rational and consistent with Civil Service Law, even if it meant appointing lower-scoring candidates from the promotional list first due to their prior experience.

Promotional ExamCivil ServiceMerit and Fitness ClauseFirefighter AppointmentsEMTsParamedicsOpen Competitive ExamPublic EmploymentJudicial ReviewCivil Service Law
References
16
Case No. MISSING
Regular Panel Decision

Riley v. Triplex Communications, Inc.

Police officers James R. Riley and Mary Gray suffered personal injuries after being struck by a drunk driver who had been served alcohol at The Cowboy Palace Inc. and Vernis J. "Joey" Dartez. They sued Triplex Communications, Inc., and Radio Station KZZB-95 FM, alleging vicarious liability and negligent promotion for their "B-95 Ladies Night" event. The trial court initially ruled against The Cowboy Palace and Dartez but favored Triplex/B-95. Appellants appealed, contesting the trial court's refusal to submit jury questions on joint enterprise and negligent promotion, as well as an erroneous definition of civil conspiracy. The appellate court found errors in the jury charge regarding civil conspiracy and agreed that the issue of joint enterprise and negligent promotion should have been submitted to the jury due to the foreseeable risks associated with the radio station's promotional activities. The decision was affirmed in part, and reversed and remanded in part.

Personal InjuryNegligent PromotionDram Shop LiabilityJoint EnterpriseCivil ConspiracyAlcohol LiabilityForeseeabilityMedia LiabilityDuty of CareTexas Appellate Court
References
13
Case No. MISSING
Regular Panel Decision
Mar 25, 1998

Marshall v. New York Division of State Police

Plaintiff Margaret A. Naughton Marshall, an employee of the State of New York Division of State Police, brought a civil action alleging sex discrimination under Title VII and retaliation. She claimed two denials of promotion due to gender and subsequent retaliation after filing an EEOC complaint. Defendants moved for Summary Judgment, which the Court partially granted. While the Court dismissed Marshall's 1994 failure to promote claim and all retaliation claims due to insufficient evidence, it did not dismiss the 1992 failure to promote claim. This was because a factual issue regarding defendants' motives, stemming from an alleged conversation about gender bias, required resolution by a trier of fact.

Sex DiscriminationTitle VIIRetaliation ClaimPromotion DenialSummary JudgmentEEOC ComplaintGender BiasBurden-Shifting AnalysisPretextPrima Facie Case
References
33
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