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

Case No. MISSING
Regular Panel Decision
Jul 27, 2007

Hai Ming Lu v. Jing Fong Restaurant, Inc.

Plaintiffs, members of the wait staff at Jing Fong Restaurant, Inc., filed an action alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) concerning minimum wage, overtime, gratuity retention, uniform reimbursement, and retaliation, alongside a breach of contract claim. The defendants, Jing Fong Restaurant, Inc. and six associated individuals, moved for summary judgment. The Court granted summary judgment, dismissing claims related to retaliation, uniform cleaning costs, breach of contract, and the argument that retaining banquet service charges violated NYLL § 196-d, citing New York appellate precedents. However, the motion was denied for claims alleging the illegal use of the gratuity pool to pay restaurant expenses, improper tip credit usage under federal and state law, and management interference in tip distribution. The Court found that genuine issues of material fact remained for trial on these latter points.

Fair Labor Standards Act (FLSA)New York Labor Law (NYLL)Minimum WageOvertime ViolationsGratuitiesTip PoolingService ChargesUniform ReimbursementRetaliationSummary Judgment
References
14
Case No. MISSING
Regular Panel Decision

Stephenson v. Hotel Employees & Restaurant Employees Union Local 100

This is a dissenting opinion concerning an age discrimination lawsuit brought by Albert Stephenson and Leroy Hodge against the Hotel Employees and Restaurant Employees Union Local 100 and the Hotel Employees and Restaurant Employees International Union. The plaintiffs were fired in 1992, and a jury found in their favor, awarding substantial damages. The majority opinion reversed this verdict, but the dissenting judge, Mazzarelli, argues that the evidence presented at trial was legally sufficient to support the jury's finding of age discrimination. The dissent reviews the trial proceedings, jury instructions, evidentiary rulings, and damage awards, concluding that the jury had a rational basis for its decision. While affirming liability, the dissent suggests remanding the case for a collateral source hearing to determine potential offsets to the damages.

Age DiscriminationEmployment LawWrongful TerminationJury VerdictAppellate ReviewLegal SufficiencyBurden of ProofPretextDamagesFront Pay
References
22
Case No. 2016 NY Slip Op 00302 [135 AD3d 572]
Regular Panel Decision
Jan 19, 2016

Domaszowec v. Residential Management Group LLC

Plaintiff Tracy Domaszowec's decedent died from a fall while cleaning a window on the 13th floor of an apartment building. The Appellate Division, First Department, modified a Supreme Court order, granting plaintiff's motion for partial summary judgment on her Labor Law § 240 (1) claim against Residential Management Group LLC and 40 Fifth Avenue Corporation (40 Fifth defendants), the building owner and manager. The court found the decedent was engaged in "commercial window washing," thereby making Labor Law § 240 (1) applicable. The court affirmed the dismissal of Labor Law § 202 against Veronica Bulgari and Stephen Haimo due to lack of exclusive control, and common-law negligence claims against T&L Contracting of N.Y., Inc. and Greenpoint Woodworking Inc. due to the lack of an exception to the contractual obligation rule. Issues of fact precluded summary judgment on negligence claims against Panorama Windows, Ltd., and the doctrine of res ipsa loquitur was deemed inapplicable to certain defendants.

Window cleaner fatalityScaffold LawSummary judgment appealAppellate Division First DepartmentCommercial vs. routine window washingLabor Law applicabilityContractual tort liabilityRes ipsa loquitur in negligencePunitive damages dismissalExpert witness evidence
References
8
Case No. ADJ10452586
Regular
Sep 24, 2018

CONSTANTINO MARTINEZ vs. BLUEWATER GRILL, CALIFORNIA RESTAURANT MUTUAL BENEFIT CORPORATION, AMERICAN CLAIMS MANAGEMENT, INC.

Here's a summary of the case for a lawyer in four sentences: The Workers' Compensation Appeals Board denied reconsideration of a decision finding injury AOE/COE. The Board affirmed the Administrative Law Judge's reliance on the Agreed Medical Evaluator's (AME) opinion, finding no persuasive reason to deviate. Defendants' arguments that the AME's opinion was based on an inadequate history or was conclusory were rejected. The Board also refused to consider a neurologic report procured after trial, as discovery had closed.

Workers' Compensation Appeals BoardPetition for ReconsiderationAgreed Medical EvaluatorWCJ reportsubstantial medical evidencePetition for RemovalPetition for Change VenueApplication for Adjudication of ClaimFindings and AwardInjury AOE/COE
References
4
Case No. MISSING
Regular Panel Decision
Oct 20, 1993

Olsen v. We'll Manage, Inc.

The case concerns an appeal by We'll Manage, Inc. from an order denying its cross motion for summary judgment in an action brought by plaintiff Gary Olsen under Labor Law §§ 240 and 241. We'll Manage, Inc. contended that Olsen was its special employee, providing evidence of direct supervision, work assignments, the right to fire him, and payment signed by its personnel, despite his wages being drawn from a general employer's account. The court found this established a special employment relationship. As Olsen received workers' compensation benefits from his general employer, he is statutorily barred from maintaining an action against the special employer. Consequently, the appellate court reversed the lower court's order, granted We'll Manage, Inc.'s cross motion, and dismissed the complaint against the appellant.

Special EmployeeWorkers' Compensation BarSummary JudgmentLabor LawDirect SupervisionControlAffidavitDeposition TestimonyGeneral EmployerAppellate Reversal
References
6
Case No. ADJ8094646
Regular
Jan 17, 2014

ALEJANDRINA BARRETO vs. OUT OF THE SHELL, SOUTHERN INSURANCE COMPANY, REPUBLIC INDEMNITY COMPANY, PHARMAFINANCE, LLC, HEALTHCARE FINANCE MANAGEMENT, LLC

This case involves lien claimants PharmaFinance and Healthcare Finance Management, and their representatives Landmark Medical Management and Brian Hall, who sought reconsideration of a decision disallowing their liens for medical treatment. The Appeals Board granted reconsideration solely to notice its intention to impose sanctions of up to $2,500 against the lien claimants and their representatives. This action is due to a pattern of allegedly filing petitions containing false statements about not receiving notices, which violates the Board's Rules of Practice and Procedure and Labor Code Section 5813. The Board found these claims not persuasive and indicative of a tactic to avoid responsibility.

Workers' Compensation Appeals BoardPetition for ReconsiderationSanctionsLien ClaimantsHearing RepresentativesIndustrial InjuryFindings and OrderCompromise and ReleaseNotice of IntentionLabor Code section 5813
References
0
Case No. CA 12-01329
Regular Panel Decision
May 03, 2013

MULLIN, CARL D. v. WASTE MANAGEMENT OF NEW YORK, LLC

Carl D. Mullin, an employee of Riccelli Enterprises, Inc., sustained injuries after falling from a ladder at a Waste Management of New York, LLC facility. Mullin initiated an action against Waste Management, which subsequently filed a third-party claim against Riccelli for breach of contract. Waste Management alleged that Riccelli failed to name it as an additional insured on various required insurance policies, including workers' compensation, commercial general liability, and automobile liability. The Supreme Court granted Waste Management's motion for partial summary judgment on the breach of contract claim. The Appellate Division unanimously affirmed the Supreme Court's order, also upholding the denial of Riccelli's motion to introduce new evidence, deeming it untimely and unlikely to alter the determination.

Breach of ContractInsurance CoverageAdditional Insured ClauseSummary Judgment MotionAppellate AffirmationThird-Party LitigationPersonal InjuryWorkplace AccidentLadder FallContractual Indemnity
References
2
Case No. MISSING
Regular Panel Decision

Chu Chung v. New Silver Palace Restaurant, Inc.

Plaintiffs, waiters at The New Silver Palace Restaurant in New York City's Chinatown, sued the restaurant and four of its principals for violations of the Fair Labor Standards Act (FLSA) and New York Labor Law. The core of the dispute revolved around the restaurant's practice of forcing waiters to pool and share their tips with management, known as 'black jackets'. The court determined that this tip-sharing arrangement was illegal and that the individual defendants, due to their ownership and managerial roles, qualified as 'employers' under the FLSA. Consequently, the court granted the plaintiffs' motion for partial summary judgment on the issue of liability, ruling that the restaurant was not entitled to the tip credit against minimum wage and that the individual defendants were liable for damages, with the exact amount to be determined later.

Fair Labor Standards ActTip CreditMinimum WageTip PoolingNew York Labor LawEmployer LiabilitySummary JudgmentEconomic Reality TestRestaurant IndustryLabor Dispute
References
15
Case No. MISSING
Regular Panel Decision

57th Street Management Corp. v. Zurich Insurance

The plaintiff, 57th Street Management Corp., sought a judgment declaring that Zurich Insurance Company, the defendant, had a duty to defend and indemnify it in an underlying negligence action initiated by an injured employee, Isaac Wilner, and a subsequent third-party action by Bade Cab Corp. Wilner was injured in 1984, received workers' compensation benefits from a policy issued by Zurich, and later sued 57th Street Management Corp. and Bade Cab Corp. The action against 57th Street Management Corp. was dismissed due to Workers' Compensation Law § 11. Bade Cab Corp. then served a third-party summons on the plaintiff. The Appellate Division reversed the Supreme Court's order, granting Zurich's cross motion for summary judgment. The court found that the plaintiff failed to provide timely notice to Zurich of the personal injury action, vitiating coverage, and that notice of the workers' compensation claim did not serve as notice for subsequent actions.

Insurance CoverageDuty to DefendDuty to IndemnifySummary Judgment AppealTimely Notice RequirementWorkers' Compensation ExclusivityThird-Party LiabilityNew York Appellate LawEmployer's Liability InsuranceVitiation of Coverage
References
5
Case No. 13-CV-2622
Regular Panel Decision

Dillon v. Ned Management, Inc.

Plaintiff Dillon accused her boss, Yacov Fridman, of sexual harassment, including inappropriate comments and physical contact. She also alleged retaliation after reporting the incidents, citing docked pay and eventual termination by Ned Management. Defendants, Ned Management, Joe Milligan, Eric Vainer, Polina Vainer, and Yacov Fridman, moved for summary judgment, claiming Dillon's termination was due to lateness. The court, presided over by Senior District Judge Jack B. Weinstein, denied the defendants' motion for summary judgment. The ruling determined that sufficient questions of material fact existed regarding hostile work environment, retaliation, and aiding and abetting claims under Title VII and NYCHRL against various defendants, warranting a trial. The claim for sexual assault and battery against Fridman also stands.

Sexual HarassmentRetaliationHostile Work EnvironmentEmployment DiscriminationTitle VIINYCHRLSummary JudgmentFederal Civil RightsIndividual LiabilitySupervisory Liability
References
63
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