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

Case No. 2016 NY Slip Op 04032 [139 AD3d 1029]
Regular Panel Decision
May 25, 2016

Pazmino v. 41-50 78th Street Corp.

The plaintiff, Jose Pazmino, allegedly sustained injuries while working on a renovation project and was struck on the head by a piece of wood. He subsequently filed an action to recover damages and moved for summary judgment on the issue of liability under Labor Law § 240 (1) against the defendant 41-50 78th Street Corp., the property owner. The Supreme Court, Queens County, denied Pazmino's motion for summary judgment. On appeal, the Appellate Division, Second Department, affirmed the lower court's decision. The appellate court concluded that Pazmino failed to establish a prima facie case that the falling object was due to the absence or inadequacy of a safety device or that his injuries were proximately caused by a statutory violation, particularly as he did not witness the wood falling.

Personal InjuryConstruction AccidentLabor Law § 240(1)Falling ObjectSummary JudgmentPrima Facie BurdenSafety DeviceProximate CauseAppellate DivisionProperty Owner
References
6
Case No. NO. 01-16-00724-CV
Regular Panel Decision
Aug 30, 2018

LMMM Houston 41, Ltd., LMMM Houston 41, Ltd, Dba La Michoacana Meat Market 41 v. Jesus Santibanez

This appeal arises from a premises liability suit where Jesus Santibanez slipped and fell on grease at La Michoacana Meat Market. A jury found La Michoacana Meat Market negligent, awarding Santibanez damages, including $120,000 for future medical expenses. La Michoacana Meat Market appealed, challenging jury instructions and the sufficiency of evidence, while Santibanez cross-appealed the reduction of his future medical expenses via JNOV. The appellate court affirmed the trial court's judgment, finding no error in the jury instructions and upholding the JNOV due to insufficient evidence to support the jury's original $120,000 award for future medical expenses.

Premises LiabilitySlip and FallPersonal InjuryJury InstructionsLegal SufficiencyFuture Medical ExpensesJudgment Notwithstanding VerdictInviteeOrdinary CareConcealed Danger
References
43
Case No. 2016 NY Slip Op 05666 [143 AD3d 43]
Regular Panel Decision
Jul 28, 2016

Jerdonek v. 41 West 72 LLC

Plaintiff Orfeusz M. Jerdonek was injured after falling from a scaffold while working in a boiler room at 41 West 72nd Street. The Appellate Division, First Department, affirmed summary judgment on Labor Law § 240 (1) liability against Bar Construction Corp. The court modified the lower court's order, granting summary judgment to defendants 41 West 72 LLC and Property Markets Group, Inc., dismissing the Labor Law claims against them. The decision clarifies that the Hermitage Condominium's Board of Managers is the proper 'owner' for liability purposes concerning common elements, not the condominium sponsor or individual unit owners, due to the board's exclusive control over these elements. The court also granted plaintiff summary judgment on Labor Law § 240 (1) liability against the Hermitage Board.

Condominium LawLabor Law § 240(1)Summary JudgmentOwner LiabilityCommon ElementsBoard of ManagersScaffold AccidentReal Property LawAppellate DivisionFirst Department
References
22
Case No. 2024 NY Slip Op 05574 [232 AD3d 700]
Regular Panel Decision
Nov 13, 2024

Velasquez v. RS JZ Driggs, LLC

Plaintiff Blaines Santos Velasquez, an ironworker, was injured during construction when temporary plywood flooring dislodged, causing him to fall onto a rebar column. He initiated a personal injury action under Labor Law § 241 (6). The defendants, RS JZ Driggs, LLC, and Foremost Contracting and Building, LLC, moved for summary judgment to dismiss the complaint. The Supreme Court denied their motion regarding claims predicated on 12 NYCRR 23-1.5 (c) (3) and 23-1.7 (e) (2). The Appellate Division affirmed this denial, finding triable issues of fact existed concerning whether the plywood flooring was sound and operable as per 12 NYCRR 23-1.5 (c) (3), and if the rebar constituted a 'sharp projection' under 12 NYCRR 23-1.7 (e) (2), clarifying that the 'integral to the work' exception for tripping does not apply when an injury results from falling onto such an object.

Personal injuryConstruction accidentLabor LawIndustrial CodeSummary judgmentTriable issue of factPlywood flooringRebarSafety devicesSharp projections
References
9
Case No. MISSING
Regular Panel Decision

Myree v. Local 41, International Brotherhood of Electrical Workers

Plaintiff Solomon Myree, Sr., a black male, filed a lawsuit in 1985 against Local 41, International Brotherhood of Electrical Workers, alleging racial discrimination under Title VII of the Civil Rights Act of 1964. The discrimination stemmed from Local 41's admission policy, which required minority trainees like Myree to pass a Journeyman’s examination for union membership, while mostly non-minority apprentices were admitted irrespective of their performance on the same exam. Myree failed the exam twice and was denied admission. After a five-day bench trial in February 1991, the court found that Local 41 discriminated against Myree due to his race. The court also denied the defendant's affirmative defenses of statute of limitations and laches.

Racial discriminationTitle VIIDisparate treatmentDisparate impactLabor unionJourneyman electricianApprenticeship programAffirmative actionEmployment discriminationStatute of limitations
References
16
Case No. MISSING
Regular Panel Decision
Mar 29, 1994

National Electrical Benefit Fund v. Heary Brothers Lightning Protection Co.

Plaintiffs, the National Electrical Benefit Fund (NEBF) and Local 41 Funds, initiated this action under ERISA to recover delinquent contributions from Heary Brothers Lightning Protection Company, Inc., Kenneth P. Heary, and Edwin W. Heary. The defendants asserted counterclaims and a third-party complaint, alleging RICO violations and other claims against the International Brotherhood of Electrical Workers (IBEW), National Electrical Contractor’s Association (NECA), Local 41, and individual union officers, claiming the collective bargaining agreements were invalid due to an alleged extortion scheme. Magistrate Judge Carol E. Heckman issued a Report and Recommendation, which District Judge Arcara reviewed de novo and adopted. The Court granted NEBF's motion for partial summary judgment on liability, dismissing the defendants' counterclaims. Motions to dismiss third-party claims against IBEW and NECA were granted, while Local 41's and other individual third-party defendants' dismissal motions were granted in part and denied in part, primarily concerning RICO allegations. The case was referred back for damages determination.

ERISARICOLMRACollective Bargaining AgreementDelinquent ContributionsSummary JudgmentRacketeering ActivityExtortionHobbs ActFraud in the Inducement
References
18
Case No. MISSING
Regular Panel Decision

Paisley v. Coin Device Corp.

Plaintiffs Dougal Paisley and Rohan Christie, employees of Coin Device Corporation, were terminated after being arrested for missing money, despite charges being dismissed. They subsequently filed an action against Coin Device Corporation, Biju Thomas, and Brian Gibbons, alleging malicious prosecution, wrongful termination, negligence, and loss of consortium. The Supreme Court initially denied the defendants' motion to dismiss these claims. On appeal, the higher court reversed this decision, ruling that the defendants were not liable for malicious prosecution as they merely provided information to the police, who made the arrest decision. Furthermore, the court found the wrongful termination claims invalid due to the plaintiffs' at-will employment status, and the negligence claims barred by Workers' Compensation Law, leading to the dismissal of all specified claims against the appellants.

malicious prosecutionwrongful terminationnegligenceloss of consortiumpunitive damagesat-will employmentWorkers' Compensation LawCPLR 3211appealemployer liability
References
7
Case No. ADJ2086025 (GRO 0016361)
Regular
Aug 20, 2009

ROBERT GUTIERREZ vs. CITY OF SANTA MARIA

This case involves a lien claim by RS Medical for approximately $2,900 for medical devices provided to the applicant. The Workers' Compensation Judge (WCJ) disallowed the lien, citing the defendant's utilization review denial of authorization. RS Medical argued the denial was not properly in evidence and was untimely. The Appeals Board granted reconsideration due to an inadequate trial record, finding the minutes of hearing failed to properly articulate stipulations and issues. The Board rescinded the WCJ's finding and returned the matter for further proceedings to create a sufficient record and a new decision.

Workers' Compensation Appeals BoardLien claimantUtilization reviewReconsiderationFinding of FactMedical device and equipmentIndustrial injuryNeck and right shoulderLaborerBackhoe
References
1
Case No. 2023 NY Slip Op 00908 [213 AD3d 1117]
Regular Panel Decision
Feb 16, 2023

Matter of Petre v. Allied Devices Corp.

Claimant Gheorghe Petre appealed a decision from the Workers' Compensation Board that denied his application for reconsideration and/or full Board review. The underlying Board decision had affirmed a Workers' Compensation Law Judge's ruling, which amended the claimant's work-related injury claim and directed his doctor to seek prior authorization for Gabapentin. The Appellate Division, Third Department, reviewed the Board's denial, limiting its scope to whether the Board had abused its discretion or acted arbitrarily. Finding no new evidence, material change in condition, or improper consideration of issues by the Board, the Appellate Division affirmed the Board's decision. Thus, the claimant's appeal for reconsideration and/or full Board review was ultimately denied.

Workers' CompensationAppellate ReviewBoard DiscretionReconsiderationInjury ClaimMedical ExpensesDrug FormularyGabapentinProcedural Due ProcessAdministrative Law
References
7
Case No. MISSING
Regular Panel Decision

BOARD OF TRUSTEES OF LOCAL 41 v. Zacher

The case involves the Board of Trustees of Local 41, International Brotherhood of Electrical Workers, Health Fund, Annuity Fund, and Pension Fund (the 'Funds') suing Robert Zacher, Robert Zacher Inc., and Robert Zacher Electric ('Zacher') under ERISA and New York law. The Funds allege Zacher failed to make timely contributions and submit monthly payroll reports, seeking liquidated damages, interest, an audit, or an equitable accounting. Zacher disputes its obligations and the enforceability of penalty provisions. The court denied both parties' summary judgment motions on liquidated damages and interest due to conflicting contractual terms. For Count Two, the court denied the Funds' request for an audit due to lack of notice but granted their motion for an equitable accounting under New York Lien Law to determine if contributions are owed.

ERISAMultiemployer Pension PlanDelinquent ContributionsLiquidated DamagesInterest ChargesCollective Bargaining AgreementSummary JudgmentEquitable AccountingNew York Lien LawContractual Dispute
References
11
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